Smith v. Idaho State of

Filing 146

MEMORANDUM DECISION AND ORDER The Order and Judgment previously entered in this action (Dkts. 112 , 113 ) are VACATED. Petitioner's Motion for Additional Discovery and to Release Evidence (Dkt. 138 ) is DENIED. 3. Respondent's Motions f or Extension of Time to file Answer (Dkts. 140 & 142) are GRANTED. 4. Petitioner's Second Petition for Writ of Habeas Corpus is DISMISSED with prejudice. Signed by Judge Edward J. Lodge. (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

LANNY SMITH,
Petitioner,

Case No. 4:08-cv-00227-EJL

vs.

MEMORANDUM DECISION AND
ORDER

LAWRENCE WASDEN and KEVIN
KEMPF,1
Respondents.

INTRODUCTION
An Order denying Petitioner Lanny Smith’s Petition for Writ of Habeas Corpus
and a Judgment were entered on March 14, 2012. (Dkt. 112, 113.) The United States
Court of Appeals for the Ninth Circuit remanded this case to permit Petitioner to obtain
the previously undisclosed criminal case file Detective Victor Rodriguez kept in this
case, and to file additional pleadings warranted by the discovery. (Dkt. 122.)
The production of the Victor Rodriguez file was part of an effort by Petitioner to
expand the record for the purpose of overcoming the State’s procedural default and
statute of limitations defenses by showing cause and prejudice or actual innocence. (Dkts.
43, 84.) Since first undertaking discovery in this federal habeas corpus action, Petitioner

1

The Court substitutes Idaho Department of Correction Director Kevin Kempf for former Director Brent Reinke.

MEMORANDUM DECISION AND ORDER - 1

has amended his petition twice, to include new substantive claims and factual allegations
based on evidence that was not included in the state court record and has never been
presented to the state courts. (Dkts. 62, 134.) Petitioner also asks for permission to
conduct further discovery (Dkt. 138.) Respondents object to the presentation of new
claims and to the request to conduct additional discovery. (Dkt. 138.)
The Court previously declined to address the tangled procedural issues that might
foreclose some of the claims, and instead proceeded to the merits, concluding that
Petitioner had not shown entitlement to relief even under a de novo review standard.
(Dkt. 112.) Potential threshold procedural questions include whether Petitioner received a
full and fair opportunity in the state courts to develop the factual basis of his claims;
whether the statute of limitations on new claims should be equitably tolled by Petitioner’s
alleged actual innocence or his mental limitations; whether the procedural default of
claims can be excused by a showing of actual innocence or cause and prejudice,
including those eligible for consideration under Martinez v. Ryan, 132 S.Ct. 1309 (2012),
and Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014); and to what extent defense
counsel conflicts of interest on direct appeal and in the initial stages of the postconviction matter excuse procedural default. Once again, the Court concludes that it is a
more efficient use of public resources to go directly to the merits of Petitioner’s claims,
while permitting Respondents to reserve their procedural bar defenses.
PROCEDURAL POSTURE OF CASE
With the help of another inmate, Petitioner presented six claims in his original pro
se federal Petition for Writ of Habeas Corpus on May 23, 2008. (Dkt.1.) The Court asked
MEMORANDUM DECISION AND ORDER - 2

Petitioner to file a supplement to clarify his claims, and he did so on August 18, 2008.
(Dkt. 7.)
The Court later appointed counsel for Petitioner and granted counsel’s request to
engage in limited discovery. On August 6, 2010, Petitioner’s counsel submitted an
Amended Petition, including eight new claims. (Dkt. 62.) On December 30, 2014, after
additional discovery granted by the Ninth Circuit Court of Appeals, Petitioner filed a
Second Amended Petition containing four new claims. (Dkt. 134.)
The Court ordered the Second Amended Petition to be filed, and then reviewed the
pleading under Rule 4 of the Rules Governing Section 2254 Cases. The Court summarily
dismissed Claims A, C(3), D, E, F, G, and I, concluding that Petitioner was not entitled to
relief on those claims.
The Court previously concluded that further evidentiary development through
additional discovery or an evidentiary hearing was not warranted. (Dkt. 112, p. 1.) After a
thorough review of the entire record, including Petitioner’s new submissions, the Court
again concludes that neither further evidentiary development nor habeas corpus relief is
warranted, for the reasons set forth below.
Some of the new evidence discovered by Petitioner is relevant to claims
previously adjudicated. The Court has reviewed all of the claims, including those
dismissed in previous Orders, to evaluate them in light of the new evidence Petitioner has
presented. For the sake of clarity, the Court vacates the prior Order and Judgment,
addresses anew all claims in this Order, and enters a new Judgment dismissing the
Second Amended Petition for Writ of Habeas Corpus with prejudice.
MEMORANDUM DECISION AND ORDER - 3

FACTUAL BACKGROUND AND STATE COURT PROCEEDINGS
In March of 1992, Leo and Mary Yvonne Downard were shot to death in their
home in Ammon, Idaho. The Downards were most likely killed late night on March 21 or
early in the morning on March 22, but their bodies were not discovered for another three
days. Petitioner Lanny Smith’s brother, Jeff Smith, was the last person to be seen at the
Downard=s home on March 21, and the State initially charged him with first-degree
murder, but the case was dismissed after a preliminary hearing. The investigation then
shifted to Petitioner. After the State developed new evidence, Petitioner was charged and
convicted of murdering the Downards, as well as burglary, arising from entry into their
home.
Petitioner was represented at trial by attorneys Stevan Thompson and Jerry Woolf.
Special prosecuting attorneys appointed to represent the State in this matter were Thomas
Moss and Jay Rosenthal. The trial judge was the Honorable James C. Herndon, Seventh
Judicial District Court in Bonneville County, Idaho.
Petitioner is currently serving a controlling sentence of life in prison without the
possibility of parole. Because he continues to claim that he is innocent of these crimes
and that Jeff is the more likely perpetrator, the factual background will be recited in detail
here.

MEMORANDUM DECISION AND ORDER - 4

1. Petitioner=s Possession of the Murder Weapon, and Jeff Smith=s
Whereabouts, on March 20, 21, and 22, 1992
In the 1980s, the Downwards lived with their children in a house on Sabin Drive
in Ammon, which was one street over from Lynn and Julia Smith=s home on Midway
Drive. Lynn and Julia=s sons—Petitioner and Jeff—knew the Downards and their
children, and they visited the Downards= home often throughout their childhood years.
(State=s Lodging A-12, pp. 2125-27.)
Lynn and Julia divorced in 1988, and Lynn moved to nearby Idaho Falls,
eventually marrying Sondra Genzinger, while Julia remained in the family home on
Midway. (State=s Lodging A-9, pp. 1390-91, 1479.) By then, Jeff had also moved out, but
Petitioner still lived with his mother on Midway until late 1991, when he moved into a
basement room in his father and step-mother=s home in Idaho Falls. (State=s Lodgings A9, p. 1391; A-12, p. 2133.)
Lynn Smith kept several guns locked in a gun cabinet to which only he had access,
and one of those guns was Petitioner=s .22 caliber, pump-action Remington Fieldmaster
rifle. (State=s Lodging A-9, pp. 1480-81.) On the evening of March 20, 1992, a Friday,
Petitioner told his father that he intended to go target shooting the next day. (Id.) At
Petitioner=s request, Lynn unlocked the gun cabinet and gave him the Fieldmaster rifle,
together with a box of .22 caliber ammunition. (Id. at 1481.)
Saturday morning, Lynn left town and would not return until late that night.
(State=s Lodging A-14, p. 1491.) Sondra Smith, Petitioner=s stepmother, was doing her
weekly chores when she saw Petitioner, carrying his rifle, leave the house around 11:00
MEMORANDUM DECISION AND ORDER - 5

a.m. (Id. at 1402.) That afternoon, he drove to the golf course where he worked and spoke
briefly with a coworker, Mike Johnson. (State=s Lodging A-11, p.1906.) Johnson noticed
the rifle in the backseat of Petitioner=s car, and Petitioner told him that he was going
target shooting. (Id. at 1907.) He returned home in the middle of the afternoon, which
drew Sondra=s attention because he struggled to open the front door with the rifle in his
hands. (Id. at 1439.) When he left home for the second time around 5:30 p.m., Sondra
saw that he was again carrying the rifle. (Id.)
Around noon on that Saturday, Jeff Smith arrived at his mother=s home in Ammon
to power rake her lawn. (State=s Lodging A-12, pp. 2138-39.) He needed a truck to haul
the heavy rental equipment, and Leo Downard gave him permission to borrow the
Downards= pickup. (Id. at 2141.) Leo asked Jeff to rake his lawn after he had finished
Julia=s lawn. (Id.)
Altogether, Jeff completed three lawns that afternoon, and he was paid about $40.
(State=s Lodging A-12, pp. 2144-45.) Late in the afternoon, he returned the equipment to
the rental store and drove to Lynn and Sondra=s home in Idaho Falls to drop off some
wooden planks. (Id.) Petitioner apparently helped Jeff unload the planks before Petitioner
left with the rifle. (State=s Lodging A-9, p.1407.) Sondra noticed that Jeff was dirty, and
she kept a close eye on him because she had just finished cleaning the house. (State=s
Lodging A-9, p. 1407.) She watched him as he used the telephone briefly before leaving
the residence, and she did not see him take anything with him as he left. (Id. at 14091416.)

MEMORANDUM DECISION AND ORDER - 6

Jeff returned the truck to the Downards and was seen departing their home at 6:30
p.m. (State=s Lodging A-6, pp. 607, 628.) About thirty minutes later, neighbors saw Leo
standing in his driveway, and he waved to them. (Id. at 553, 608.)
At about that same time, Petitioner arrived at a friend=s house to watch NCAA
basketball tournament games. (State=s Lodging A-13, p. 2572.) Petitioner told his friend
that he had been target shooting shortly before he came over. (Id. at 2576.) He stayed at
the friend=s house for about three hours, until about 10:15 p.m. (Id. at 2574.) Another
guest claimed that Petitioner lingered in the doorway for a few minutes before
announcing that he was headed home and adding that he Awas going to kill some rabbits.@
(State=s Lodging A-11, p. 1914.)
Sondra Smith was preparing for bed when she heard the front door open and close
between 10:30 and 11:00 p.m. Saturday night. (State=s Lodging A-9, p. 1437.) She
assumed that Petitioner had returned. (Id.) Lynn Smith returned from his day trip around
midnight, and he saw that Petitioner=s car was parked in front of the house. (Id. at 1494.)
Lynn noticed that Petitioner was still awake because he could hear the shower running in
the bathroom downstairs. (Id. at 1513-14.)
Earlier, around 9:00 p.m., Jeff arrived at a nightclub, where he stayed for about
three hours before moving on to another club. (State=s Lodging A-12, pp. 2151-53.) He
was generally in a good mood, interacted with others, and even bought an acquaintance a
drink. (Id. at 232-33.) Jeff left the bar at 1:00 a.m. and, according to him, he then went to
his apartment to go to sleep. (Id. at 2153.) His girlfriend arrived around 3:00 a.m. and
stayed the rest of the night. (Id. at 2366.) Except for about 15 minutes the next morning
MEMORANDUM DECISION AND ORDER - 7

when Jeff went out to buy some groceries, he and his girlfriend were together all day on
March 22 until late that night. (Id. at 2367, 2375.) Jeff was happy to see his girlfriend and
was relaxed during the time that they spent together. (Id. at 2380-81.)
At an unknown time in the overnight hours of March 21 and 22, 1992, Leo and
Mary Downard were shot to death in their home.
2. The Days Following the Murders
On Sunday morning, Petitioner retrieved the rifle from his bedroom and gave it to
Lynn, who put it away and locked the cabinet. (State=s Lodging A-9, pp. 1515-17.)
That same morning, a member of the Downards= church became concerned when
the normally dependable Mary failed to show up to teach a Sunday school class. (State=s
Lodging A-7, pp. 655-57.) She called the Downards= home, and then called again for the
next several days, but received no answer. (Id.)
On separate occasions on Sunday afternoon, two witnesses in the Downards=
neighborhood saw a person that they recognized as Petitioner drive slowly down Sabin
Drive, once on a motorcycle and once in his compact car. (State=s Lodging A-11, pp.
1979, 2006.) Others saw him driving in the area again two days later, looking in the
direction of the Downards= home. (Id. at 2017-18, 2029-31.)
Jeff Smith also returned to the Downards= residence on Tuesday and Wednesday,
ostensibly to ask Leo if he could borrow the truck again, and he went to the front door
and knocked. (State=s Lodging A-12, pp. 2155-60.) Jeff noticed that the front door was
slightly ajar, but he did not go inside, and he left when there was no answer. (Id.)

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The Downards= bodies were discovered on Wednesday, March 25. (State=s
Lodging A-6, p. 614.) Leo was found in the living room. (State=s Lodging A-7, pp. 661.)
He had been shot three times; once in the chest, another in his heart, and a third shot
entered his head from extremely close range. (Id. at 773-74.) Mary=s body was discovered
upstairs in the master bedroom. (Id. at 662.) She had been shot three times in the head,
with one shot behind her ear. (Id. at 764.)
3. The Investigation, Charges, and Trial
Investigators retrieved five .22 caliber shell casings from the crime scene. (State=s
Lodging A-8, pp. 1142-44.) They also discovered two partial shoe prints in the dust in the
bedroom where Mary=s body was found and additional partial prints in a field behind the
house. (State=s Lodging A-7, pp. 710-11.) Of these, a photograph was taken of one of the
prints from the upstairs bedroom. (Id.)
Because Jeff was the last person known to have been with the Downards before
they were killed, the investigation started with him. (State=s Lodging A-7, p. 673.) The
police contacted Lynn Smith, who notified Jeff that investigators wanted to speak with
him about “something serious that had happened in Ammon.” (State=s Lodging A-8, p.
997.) Jeff quickly located a police officer who was engaged in a traffic stop near his
apartment and said, without prompting, that he had not been to Ammon recently. (State=s
Lodging A-13, p. 2534.) When he was interviewed formally that night, however, he
admitted that he had been to the Downards= home raking their lawn the previous Saturday
and that he had been back to knock on their door. (State=s Lodging A-7, pp. 678, 691.)

MEMORANDUM DECISION AND ORDER - 9

When he was told that the Downards had been killed, he broke down and cried. (Id. at
678.)
Investigators searched Jeff=s apartment and retrieved a pair of size 92 FootJoy
tennis shoes with a tread that was similar to the prints that they had seen in the Downards=
home. (State=s Lodging A-10, p. 1604.) These shoes were eventually deemed to be
slightly too large to have made the print that had been photographed. (State=s Lodging A11, p. 1859.) They also collected a pair of jeans that had a small red spot on them, and a
presumptive test for blood was positive, but a follow-up test by a lab could not confirm
the presence of blood. (State=s Lodging A-11, pp. 1889-90.)
Investigators later seized guns from Lynn Smith=s gun cabinet, including the .22
caliber Fieldmaster rifle, and though Petitioner had the rifle on March 21 and 22, he told
officers that only his father had access to the locked cabinet and that no one used the
Fieldmaster in “quite some time.” (State=s Lodging A-10, p. 1597.) Lynn Smith also
claimed that the cabinet had been locked when he went out of town on March 21. (Id.
1601.) Despite these assurances, ballistics tests would later confirm that the spent shell
casings found in the Downards= home had been fired and ejected from Petitioner=s
Fieldmaster rifle. (State=s Lodging A-8, pp. 1142-47.) And while the bullets taken from
the Downards= bodies were severely damaged, at least one was also linked to the same
rifle. (Id. at 1150.)
Because investigators still did not know that Petitioner possessed the murder
weapon on the weekend that the Downards were killed, the State went forward with
charges against Jeff for murder and burglary. The case proceeded to a preliminary
MEMORANDUM DECISION AND ORDER - 10

hearing, where Lynn admitted for the first time that Petitioner had the rifle from March
20 to 22. (State=s Lodging A-10, p. 1609.) The charges against Jeff were dismissed, and
the State=s investigation then shifted to Petitioner.
Investigators had searched Petitioner=s bedroom and seized a pair of size 82
FootJoy tennis shoes that, unlike Jeff=s FootJoys, were found to be closer to the size of
the print that had been photographed in Downards= bedroom. (State=s Lodging A-8, pp.
971-72.) The case against Petitioner still did not move forward, however, until about a
year and a half after the murders, when a witness named Beverly Huffaker began to take
on a more prominent role. She told investigators that Petitioner was a frequent visitor to
her home before, during, and for some time after the Downards were murdered. (State=s
Lodging A-9, pp. 1239-40.) She said that Petitioner was close friends with her son, Scott,
and that Petitioner had expressed his interest in older, heavy-set women and, in particular,
that he found Mary Downard to be attractive. (Id. at 1281-91.)
Most notably, Mrs. Huffaker told the police about a meeting that she claimed
happened with Petitioner very early in the morning on March 22, 1992, after she had
returned from a trip to Nevada with her son. (State=s Lodging A-9, pp. 1244-45.)
According to her, Petitioner was waiting at her home when they arrived at 1:00 a.m., and
he was teary and extremely upset, but he would only tell her that Asomething bad had
happened.@ (Id. at 1249.) Scott Huffaker also recalled this incident and agreed that it
happened on that date. (Id. at1370.) Although the Huffakers went to Nevada frequently to

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see shows and to gamble, they recalled this particular trip because Scott had won $400,
which he allegedly used to buy a rifle the next day. (Id. at 1371.) 2
On December 14, 1994, a grand jury indicted Petitioner on two counts of first
degree murder, one count of burglary, and a sentencing enhancement for the use of a
deadly weapon. (State=s Lodging A-1, pp. 1-3.)
The case did not proceed to a jury trial for another 15 months, beginning in late
March of 1996 and ending approximately four weeks later. Jeff Smith, who up to that
point had indicated that he would invoke his Fifth Amendment privilege against selfincrimination, agreed to testify for the State under a grant of immunity. (State=s Lodging
A-12, pp. 2112-2283.) He provided a timeline of his actions on the weekend that the
Downards were killed, and he denied he committed the crimes. (Id.)
In addition to the evidence recited above—including the forensic evidence
showing a size 82 shoe more closely matched the shoe prints and the ballistics evidence
tying the spent shell casings to Petitioner=s Fieldmaster rifle—the State also presented the
testimony of a jailhouse informant, James Swogger, Jr., who claimed that Petitioner had
confessed to him that he had killed the Downards. (State=s Lodging A-10, pp. 1558-59.)
The defense called nearly two dozen witnesses in its case-in-chief. (State=s
Lodgings A-12 to A-14.) Notable among the evidence was the testimony of Brian
Ravenscroft, who claimed that Petitioner had admitted to him “that he was aware that it
was his shoe print that was found at the Downards= home,” and that if they let Jeff go,
2

The Huffakers= claims that this strange late-night interaction with Petitioner occurred on the weekend of
the Downards= murders, rather than on some other date, was strongly contested by the defense at trial. A receipt of
Scott=s purchase of a rifle in1992 was discovered during the trial, and it was dated in February rather than in March.
The receipt was introduced into evidence. This issue is discussed in greater detail herein below.

MEMORANDUM DECISION AND ORDER - 12

they would arrest Petitioner. (State=s Lodging A-13, p. 2592.) Petitioner did not testify,
and the jury returned guilty verdicts on all counts. (State=s Lodging A-14, pp. 528-30.)
The State originally sought the death penalty, but it reached an agreement with the
defense that Petitioner would be sentenced to two fixed life sentences for the murders, a
fixed ten-year sentence for first-degree burglary, and a fixed five-year sentence for the
sentencing enhancement, all to be served concurrently. (State=s Lodging A-3, pp. 65456.) The trial court followed the agreement and imposed those sentences on Petitioner.
(Id.) The Idaho Court of Appeals affirmed his convictions and sentences on direct appeal,
and the Idaho Supreme Court declined to review the case. (State=s Lodgings B-3, B-6, B7.)
4. Post-Conviction Proceedings
While Petitioner=s direct appeal was still pending, the trial prosecutor forwarded a
supplemental discovery response to trial counsel (who was also serving as direct appeal
counsel). (State=s Lodging C-1, pp. 12-18.) The supplemental response contained a
recently completed written statement from Jamie Lynn Hill, who claimed to have
witnessed an altercation between Jeff Smith and his ex-wife in 1994 or 1995, before
Petitioner was tried on these charges. (State=s Lodging C-1, p. 16.) Hill asserted that
when she tried to intervene, Jeff told her, “you better back down little girl, or I=ll take care
of you just like I took care of that ol= Ammon couple.” (State=s Lodging C-1, p. 16.)
Based on this information, Petitioner=s counsel pursued post-conviction relief, in
part, on the ground that the prosecution had withheld exculpatory evidence from the
defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963). (State=s Lodging C-1, pp.
MEMORANDUM DECISION AND ORDER - 13

41-42.) After holding an extensive evidentiary hearing, the trial court denied relief,
concluding that Petitioner had failed to show that the Hill had contacted investigators in
the Downard case who would have had a duty to disclose the evidence to the defense.
(State=s Lodging C-4, p. 244.) On appeal, the Idaho Court of Appeals affirmed. (State=s
Lodging D-4, p. 8-11.) The Idaho Supreme Court denied Petitioner=s request for review.
(State=s Lodging D-8.)
HABEAS CORPUS STANDARD OF REVIEW
Federal habeas corpus relief may be granted where a petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Different standards of review may apply, depending on whether the petitioner
properly presented his claims to the highest state court.
1. AEDPA Deferential Review
Where the petitioner challenges a state court judgment in which the petitioner’s
federal claims were adjudicated on the merits, Title 28 U.S.C.§ 2254(d), as amended by
the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), applies. Title 28
U.S.C. § 2254(d) limits relief to instances where the state court’s adjudication of the
petitioner’s claim:
1.

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

2.

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

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28 U.S.C. § 2254(d). This standard is often referred to as the “AEDPA deference”
standard. A federal habeas court reviews the state court’s “last reasoned decision” in
determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797,
804 (1991).
Where a petitioner contests the state court’s legal conclusions, including
application of the law to the facts, § 2254(d)(1) governs. That section consists of two
alternative tests: the “contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Stated more simply, “Section 2254(d) applies regardless of the procedures
employed or the decision reached by the state court, as long as a substantive decision was
reached.” Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court—although it identified “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014).
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A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, the
state court’s application of federal law must be objectively unreasonable to warrant relief.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If fairminded jurists
could disagree on the correctness of the state court’s decision, relief is not warranted
under § 2254(d)(1). Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The Supreme
Court emphasized that “even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (internal citation omitted).
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive
authority for determining whether a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013).
When a party contests the reasonableness of the state court’s factual
determinations 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.” 28 U.S.C. § 2254(d)(2). If the factual findings
of the state court are not unreasonable, the Court must apply the presumption of
correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle
v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
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2. De Novo Review
Section 2254(d)(1), the strict deferential standard, does not apply, making de novo
review of a claim possible only under the following circumstances: (1) where the state
appellate court did not decide a properly-asserted federal claim; (2) where the state
court’s factual findings are unreasonable under § 2254(d)(2); or (3) where an adequate
excuse for the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167
(9th Cir. 2002). In such a case, as in the pre-AEDPA era, a district court can draw from
both United States Supreme Court and well as circuit precedent, limited only by the nonretroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).
Under de novo review, if there are factual findings of the state court, and they are
not unreasonable, the Court must apply the presumption of correctness found in 28
U.S.C. § 2254(e)(1). Pirtle, 313 F.3d at 1167. Contrarily, if a state court factual
determination is unreasonable, or if there are no state court factual findings, the federal
court is not limited by § 2254(e)(1), and the federal district court may consider evidence
outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray
v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
CLAIM A(1): BRADY EVIDENCE—JAMIE HILL STATEMENT
Claim A(1)3 is that the State failed to disclose Jamie Hill’s s statements to police
that Jeff admitted in 1994 or 1995 to murdering the Downards, in violation of Petitioner’s
Fourteenth Amendment rights, as set forth in Brady v. Maryland, 373 U.S. 83, 87 (1963).
3

To more easily identify the claims, the Court follows the numbering system set forth in the outline of the Second
Amended Petition. As a result, the numbers are not always consecutive, for example, A(6) follows A(1).

MEMORANDUM DECISION AND ORDER - 17

Jamie Hill was a co-worker of Jeff Smith’s then wife, now ex-wife, Robin Smith (now
Jacobsen).4 This claim was properly exhausted in the post-conviction action. After a
review of the record, the Court concludes that Petitioner’s new evidence does not make a
difference in the outcome of this claim.
1. Standard of Law
While defendants have no general constitutional right to discovery in criminal
proceedings, Weatherford v. Bursey, 429 U.S. 545, 559 (1977), due process requires that
the prosecution disclose evidence favorable to an accused upon request, when such
evidence is material to guilt or punishment, including impeachment evidence. Brady v.
Maryland, 373 U.S. 83, 87 (1963); Giglio v. U.S., 405 U.S. 150 (1972). After the Brady
rule was announced, the United States Supreme Court clarified: “We do not ...
automatically require a new trial whenever a combing of the prosecutors' files after the
trial has disclosed evidence possibly useful to the defense but not likely to have changed
the verdict ... A finding of materiality of the evidence is required.” United States v.
Bagley, 473 U.S. 667, 677 (1985).
“Material” evidence is any evidence for which there is a reasonable probability
that its disclosure would have changed the outcome of the proceeding, and a “reasonable
probability” means one sufficient to undermine confidence in the outcome. Bagley, 473
U.S. at 682. To meet the “materiality” factor, the defendant need not show that he would
more likely than not have been acquitted had the evidence been disclosed, but only that

4

An Affidavit signed by Ms. Jacobson shows the spelling of her first name as “Robbin” (Dkt. 134-3), while
everywhere else in the record it is spelled “Robin.” The Court uses one “b” for consistency’s sake.

MEMORANDUM DECISION AND ORDER - 18

he did not receive a fair trial that resulted in a verdict “worthy of confidence.” Kyles v.
Whitley, 514 U.S. 419, 434–35 (1905).
In summary, there are three components of a Brady violation: (1) the evidence at
issue must be favorable to the accused; (2) the evidence must have been suppressed by
the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v.
Greene, 527 U.S. 263, 281–82 (1999).
2. Discussion
The Jamie Hill statement was the subject of an extensive evidentiary hearing
during the state post-conviction proceeding, and the Idaho Court of Appeals denied the
claim on the merits. (State’s Lodging D-4.) To be entitled to relief, Petitioner must show
that the Idaho Court of Appeals= decision was contrary to or involved an unreasonable
application of clearly established federal law, as determined by the United States
Supreme Court, or that it 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). Petitioner is
unable to carry this burden.
The state district court found that Petitioner had failed to show the prosecution
withheld favorable evidence because he had not proven that Hill reported Smith=s
statement with sufficient specificity to officials investigating the Downards’ murders
before or during Petitioner=s trial.
On appeal, the Idaho Court of Appeals recognized Brady as governing precedent.
The Idaho Court of Appeals upheld the district court’s finding, reasoning:

MEMORANDUM DECISION AND ORDER - 19

The credibility of the witnesses, the weight to be given to their
testimony, and the inferences to be drawn from the evidence are all matters
solely within the province of the district court. [Citation omitted.] Because
there is sufficient evidence supporting the district court’s factual finding
that J.H [Jamie Hill] did not report Jeff’s [Jeff Smith’s] threat to the police
until October 2000, we cannot conclude that the finding was clearly
erroneous.
If J.H. did not relay Jeff’s threat to the police involved in the investigation
until October 2000 during the pendency of Smith’s appeal, the prosecutor
could not reasonably be imputed to have had knowledge or control of Jeff’s
threat to J.H. at the time of Smith’s trial. We hold that the district court
properly ruled that Smith failed to demonstrate that the state suppressed
evidence of Jeff’s threat. We therefore need not determine whether the
evidence of Jeff’s threat would have been favorable to Smith’s case or
whether suppression of it by the state would have prejudiced Smith. The
district court properly dismissed Smith’s Brady claim after an evidentiary
hearing.
(State’s Lodging D-4, pp.10-11.)
As to the state court findings, Petitioner now asserts: “While Ms. Hill’s testimony
was less than clear at times, the factual finding made by the district court is nonetheless
clearly erroneous, and the Court of Appeals decision was based on an unreasonable
determination of the facts in light of the evidence presented during the post-conviction
proceedings.” (Dkt. 1334, pp. 11-12.) In a habeas action, state court findings of fact are
presumed to be correct, absent clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
At the evidentiary hearing, Hill initially testified that she had called the police and
informed them on two different occasions about Smith=s statement near the time that the
incident occurred. She later backtracked and admitted that she could not remember the
details and that she was not “100 percent” certain what she said to them. (State=s Lodging
C-4, pp. 93-94.) A sheriff’s office incident report shows that an unknown person reported
MEMORANDUM DECISION AND ORDER - 20

an incident of spousal abuse involving Jeff and Robin at the care center where Jamie and
Robin worked on March 18, 1994, but it contains no other information. (State’s Lodging
C-5, p. 2.)
On cross-examination it became apparent that Ms. Hill had told many different
versions of this incident. Witnesses who worked at the center or who were mentioned by
Ms. Hill were called testify at the hearing to dispute Ms. Hill’s story. The State also
introduced several witnesses who cast doubt on Hill=s reputation for honesty. (State=s
Lodging C-4, p. 159.)
The Jamie Hill statement is also contrary to the transcript of the 2004 written
interview Robin Jacobsen had with Sheriff’s Investigator James Foster. In that interview,
Robin said that Jeff never said anything to her about being involved in the Downards’
murder. She said she didn’t know Jamie Hill. Robin also said Jeff never said that he
would kill Robin like he killed the Downards; rather, he threatened to kill her with a
shotgun after she joked that it was too bad he hadn’t been injured when he wrecked his
pickup. (Dkt. 63-5, Exhibit 9 to Deposition of Stevan Thompson.)
Robin contradicted herself in an Affidavit (Dkt. 134-3), stating that Jeff told her,
“I will put you down like I did the Downwards.” She stated that two underage girls were
present at the time, and Jeff had come by the Life Care Center to ask Robin for money.5

5

In contrast, the 2004 statement shows only that Robin said that she went outside her place of employment and saw
two young ladies in Jeff’s pickup. She said she gave him “an attitude hi” but they did not get into a physical fight
and no one was with her. (Id., pp. 9-10.) Also in that interview, in response to the question whether “Jeff, during the
time you knew him, never admitted to you at any time, that he killed Leo and Mary Downard,” she said, “Nope. Not
one time.” (Id., p. 10.)

MEMORANDUM DECISION AND ORDER - 21

The circumstances of this alleged statement are very different from the circumstances that
Jamie Hill described.
In an effort to show an unreasonable finding of fact, Petitioner misrepresents the
post-evidentiary hearing record regarding the testimony of Jamie Hill’s father, Idaho
Falls Police Captain Hagen. Petitioner represents that Captain Gary Hagen “was clear in
his response” that he recalled that Jamie made the statement to him “either around the
time of Jeff Smith’s preliminary hearing or Petitioner’s trial.” (Dkt. 134, p. 12.) To the
contrary, Captain Hagen was simply trying to extrapolate what year the statement might
have been made, using the trial date someone else provided to him as a reference point.
Because the starting reference point is merely speculative, the resulting extrapolation was
also speculation. What is clear is that he was very honest about not having any idea when
the statement occurred:
Q.

(By Mr. Stafford) Did you make a statement that this
happened before Lanny’s arrest and around the time of Jeff
Smith’s preliminary hearing?

A.

I don’t recall making a statement similar to that. There was a
question as to the date that this had happened that Jamie had
made this statement. And Mr. Dillon had asked me if I could
remember the year, and I said, no, I really don’t. If I had any
idea, I would know what was going on in my life. And he
said, well, how about the spring of ’95? And I said, well, if
that’s the case, then, yeah, I did have a lot going on. And
that’s how we came up with the date between ’95 and ’96.

Q.

But you could say that this was before Lanny Smith’s trial;
can you not?

A.

I don’t recall when the trial was.

Q.

The year 1996.

MEMORANDUM DECISION AND ORDER - 22

A.

Then if ’95, it would be plain. If the statement was made in
1995, then the trial was in 1996.

Q.

Well, it was while – Jamie made the statement – while she
was working at the Life Care Center?

***
A.
I do not recall.
Q.

You don’t recall where she was working?

A.

I do not recall. If I knew the year that the statement was
made, I could probably tell you where she was working, but I
don’t recall when it was made.

Q.

Do you recall if she was in high school or not?

A.

I don’t recall.

(State’s Lodging C-4, pp. 103-04.)
Based on this testimony, Petitioner argues that the Idaho courts made an
unreasonable determination of fact, because it is very clear from the foregoing colloquy
that Captain Hagen knew the statement was made in 1995 or 1996. The record plainly
reveals no such statement by Captain Hagen, and, in other parts of the record, he repeated
his position that he did not recall the date of Ms. Hill’s statement. (See State’s Lodging
C-4, pp. 98.)
Petitioner also argues that Captain Hagen’s knowledge of the statement should be
imputed to the investigating officers of the Bonneville County Sheriff’s Office and to the
prosecutor in the Downard case, because Hagen was a captain with the Idaho Falls Police
Department. (Dkt. 134, pp. 12-13.) While it is true that “an individual prosecutor has a
duty to learn of favorable evidence known to others acting on the government=s behalf in
MEMORANDUM DECISION AND ORDER - 23

the case,” Kyles, 514 U.S. at 437, there was no evidence that Gary Hagen was acting on
the government=s behalf in the Downard case. As an Idaho Falls police officer, he was not
involved in the investigation of the Downards’ homicides in Ammon, which were being
investigated by the Bonneville County Sheriff=s Department. More generally, he was
acting as Hill=s father rather than a law enforcement official when he advised her to
contact the appropriate authorities and stay away from Jeff Smith. (State=s Lodging C-4,
p. 99.) In addition, the argument fails because Petitioner has not proven that the timing of
the statements was prior to Petitioner’s trial.
In summary, relying on all of the new and old evidence in the record, Petitioner
simply has not established (1) the date that Jamie Hill made the statement to her father or
to the police; (2) that her original report to the police even included the information about
Jeff Smith’s alleged comments about the Downards; or (3) that officials with authority in
the Downard case knew about the incident between Smith and Hill such that they would
have had a duty to disclose it to the defense. The reports of Jamie Hill and Robin
Jacobsen contradicted themselves and each other, and Jamie Hill’s credibility was
seriously called into question by other witnesses at the post-conviction hearing.
Accordingly, the Court concludes that this dispositive factual finding was not
unreasonable on the evidence presented in state court, and the state court decision was
not an unreasonable application of the law. Hence, Claim A(1) fails under 28 U.S.C. §
2254(d)(1) and (2).

MEMORANDUM DECISION AND ORDER - 24

CLAIM A(6): BRADY CLAIM—ROBIN JACOBSON
STATEMENT ABOUT JEFF’S CREAM-FILLED
SURGICAL GLOVE
Petitioner asserts that the prosecution wrongly withheld from defense counsel
evidence that Jeff’s then-wife, Robin Jacobson had found potential exculpatory evidence
four years after the murder. This claim was not presented to the state courts and is
procedurally defaulted. The claim is derived from the following interview Robin
Jacobson had with Police Investigator James Foster in 2004. The pertinent portion of that
interview discussing the evidence is as follows:
Foster:

Do you recall Jeff ever telling you that he had killed the
Downards?

Robin:

No.

Foster:

Do you recall Jeff ever telling you that he had planted
evidence?

Robin:

No. Except there’s one thing. I got home, and I wanted a
cigarette. I didn’t have a cigarette, so I looked in Jeff’s
bedroom, because him and I didn’t sleep together [sic]. I
could not tolerate his attitude and stuff. So I looking [sic] in
between the bed and I found something so weird.

Foster:

What did you find so weird.

Robin:

It was a glove, kind of like a cut off glove, with liquid in it.
With blood in it. Like a cream stuff. Tell me about it.

Foster:

Like cream?

Robin:

Yeah. With blood in it. And I almost had a heart attack. Went
downstairs, used the phone to call an officer, an officer came
over and said that’s not going to help us. And I go; it’s got to
help somehow. It’s from Jeff’s room. It’s part of his
property.

MEMORANDUM DECISION AND ORDER - 25

Foster:

Do you remember when that was?

Robin:

’96.

Foster:

’96.

Robin:

Uh huh.

Foster:

And there was still wet blood in there?

Robin:

Uh huh.

Foster:

What kind of . . .

Robin:

Like a floaty.

Foster:

What kind of glove was it?

Robin:

Like a glove, a surgical glove. And I just lost it. I thought, oh,
my God.

Foster?

That was in 1996.

Robin:

Yeah.

Foster:

Four years after the murder.

Robin:

Yes.

(Dkt. 63-5, pp. 15-16; Exhibit 9 to Deposition of Stevan Thompson.)
For shock value in his habeas pleadings, Petitioner describes this item as a “bloody
glove,” implying that Jeff had worn the glove when he killed the Downards. The
evidence is nothing of the sort. From the description above, it is clear that, four years
after the murder, Jacobson found an inflated surgical glove, like a “floaty,” that contained
cream and what she speculated to be blood. It defies logic to venture how or why a
criminal would have stopped to capture blood from victims, placed in a surgical glove,
MEMORANDUM DECISION AND ORDER - 26

intermixed it with a “cream,” tied it into a floaty, put it “in between the bed,” and saved it
in a liquid form for four years, without it having burst upon the impact of repeatedly
sleeping in the bed. If Jacobsen did report this story to police investigators, itis no wonder
that they deemed this type of “evidence” unusable.
This claim, based on Jacobson=s off-hand recollection during an interview eight
years later, is wholly speculative. There is no proof that the glove actually existed, nor is
there any evidence tending to show that the glove, if it existed, was connected to the
Downards’ homicides, or why she believed that Jeff Smith might have been involved in
the crime. There is nothing to verify the purported timing of the disclosure to police
officers or even if the disclosure actually occurred, as with the Jamie Hill statement.
In the same interview, Jacobson stated that she just had a Afeeling@ that Jeff was
involved because of his general “attitude” and because Jeff had said, “Yes!” when he
heard on television that Petitioner had a trial date. (Dkt. 63-5, pp. 7; Exhibit 9 to
Deposition of Stevan Thompson.) Jacobsen testified that she did not believe that Jeff ever
hurt anyone, nor did he ever tell her that he had killed anyone. (Id., p. 4.) She confirmed
at the post-conviction evidentiary hearing that Smith has never admitted to her that he
had committed the crime. (State=s Lodging C-4, p. 109.)
A meritorious Brady claim cannot be based on mere speculation. See Barker v.
Fleming, 423 F.3d 1085, 1099 (9th Cir. 2005) (dismissing a petitioner=s theory of a Brady
violation as Amere speculation@). The Jacobson evidence is so untenable, vague,
insubstantial, and unreliable that Petitioner has failed to show how its disclosure would
have had any effect on guilt or punishment. See United States v. Sarno, 73 F.3d 1470,
MEMORANDUM DECISION AND ORDER - 27

1506 (9th Cir. 1995) (finding no Brady violation from the failure to disclose evidence
that was “marginal, ambiguous, cumulative, inadmissible, unreliable, inculpatory,
irrelevant, or of negligible probative worth”).
There is “no constitutional requirement that the prosecution make a complete and
detailed accounting to the defense of all police investigatory work on a case.” Moore v.
Illinois, 408 U.S. 786, 795. The State has no obligation to provide speculative
information to the defense. U.S. v. Agurs, 427 U.S. 97, 110 n.16 (1985) (citing Giles v.
Maryland, 386 U.S. 66, 98, Fortas concurring). The Court concludes that the cream-filled
floaty statement is not favorable to the defense, was not known by the prosecution, and is
not material. No federal habeas corpus relief is warranted on Claim A(6), and it borders
on being frivolous.
CLAIM B
RIGHT TO PRESENT A COMPLETE DEFENSE
Claim B is that the trial court=s exclusion of evidence related to Jeff Smith=s
violent character violated his Sixth and Fourteenth Amendment right to present a
meaningful alternate perpetrator defense to the charges against him. (Dkt. 134, p. 16.)
Petitioner bases this claim on the trial court=s exclusion of the defense=s written offer of
proof, labeled AExhibit AA,@ which Petitioner asserts was a compilation of police reports
and witness statements showing specific instances of Jeff=s past misconduct. (Id. at 17.)
The Idaho Court of Appeals described the proffered instances of Jeff=s prior bad acts as
the following:
Jeff had (1) as a sixteen year-old brandished a firearm at a neighbor; (2) as an
eighteen or twenty year-old raped his first wife and threatened to kill her with a
MEMORANDUM DECISION AND ORDER - 28

shotgun if she were to leave him; (3) sold a watch to a bartender (apparently an
attempt to raise an inference that Jeff is a thief); (4) in 1991 or 1992, drove a
company vehicle in a reckless manner and became angry when confronted by his
boss; and (5) threatened to use a gun to steal money from a hearing aid shop in
1994.
(State=s Lodging B-3, p. 6.)6
Petitioner raised this issue as a state-law evidentiary claim on direct appeal in state
court, rather than a federal claim. (State’s Lodging B-1.) The Idaho Court of Appeals
affirmed the trial court=s ruling by relying primarily on Rule 608(b) of the Idaho Rules of
Evidence, which prohibits the admission of extrinsic evidence of a witness=s prior
misconduct to impeach the witness=s credibility. Assuming without deciding that
Petitioner can show cause and prejudice for the procedural default of this claim, the Court
reviews the merits of the claim de novo.
1. Standards of Law
The Sixth and Fourteenth Amendments guarantee criminal defendants a
meaningful opportunity to present evidence in support of a complete defense. Crane v.
Kentucky, 476 U.S. 683, 689-690 (1986) (quoting California v. Trombetta, 467 U.S. 479,
6

The original “Exhibit AA” that was offered in the state trial court apparently cannot now be located.
(Dkts. 110, 111.) Petitioner has instead submitted a copy of a substituted Exhibit AA that his counsel attempted to
augment to the record on appeal in the Idaho Court of Appeals. (Dkt. 69.) In support of his motion to augment,
Petitioner=s counsel argued in the state court that the original exhibit was not included in the appellate record. (Dkt.
76-1, Appendix A.) The State objected to the motion, claiming that the original exhibit was, in fact, already part of
the record on appeal and that the newly proffered exhibit was not exactly the same as the one in the appellate record.
(Dkt. 76-1, Appendix B.) The Court of Appeals denied the motion. (Dkt. 76-1, Appendix C.)
Respondents object here to Petitioner=s reliance on the substituted Exhibit AA on the ground that the
exhibit was never made a part of the state court record. But, regardless of fault, Respondents have not been able to
produce the original exhibit that their representative claimed in the state courts was a part of the record on appeal.
From a review of the record, moreover, the Court finds that the substituted version contains substantially the same
evidence that Petitioner=s counsel argued to the Court of Appeals was improperly excluded in the trial court. For
these reasons, and because the present claim lacks merit in any event, the Court considers Petitioner=s substituted
Exhibit AA to be a close approximation of what was before the state courts.

MEMORANDUM DECISION AND ORDER - 29

485 (1984)). The right is subject to reasonable restrictions based upon other legitimate
interests in the criminal trial process. United States v. Scheffer, 523 U.S. 303, 308 (1998)
(citations omitted). A defendant does not have the right to present evidence that is
Aincompetent, privileged, or otherwise inadmissible under standard rules of evidence.@
Taylor v. Illinois, 484 U.S. 400, 424 (1988).
Idaho Rule of Evidence 404(a) provides that evidence of a person’s character or
trait of character is not admissible to show propensity of a witness to act in conformity
with that character or trait. An exception to that rule is Idaho Rule of Evidence 608(b),
which permits a witness to be impeached by asking him specific instances of conduct for
the purpose of attacking or supporting his credibility, but may not be proved by
introducing extrinsic evidence. In addition, Idaho Rule of Evidence 403 provides:
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”

Federal habeas review of state court evidentiary rulings is limited. See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions”). Only state
evidentiary rulings that “serve no legitimate purpose or that are disproportionate to the
ends that they are asserted to promote” will implicate a defendant=s right to due process
of law. Holmes v. South Carolina, 547 U.S. 319, 326 (2006). A state court=s evidentiary
ruling will not provide a basis for habeas relief unless it “rendered the trial fundamentally
MEMORANDUM DECISION AND ORDER - 30

unfair in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995)
(citing Estelle, 502 U.S. at 67-68).
2.

Discussion

To warrant habeas corpus relief, Petitioner must show that the trial court=s
exclusion of his proffered evidence rendered the trial fundamentally unfair. At trial, Jeff,
the alternate suspect, testified that he had a “fair” reputation. The trial court allowed
Petitioner=s counsel to cross-examine him about several of his previous acts of violence
and other unlawful behavior to impeach his credibility. (State=s Lodging A-12, p. 2195.)
During that examination, Jeff admitted that he had stolen Petitioner=s .22 caliber
rifle five years before the Downards were murdered and attempted to pawn it. (Id. at
2196-98.) He conceded that he had entered Lynn and Sondra Smith=s residence through a
window and had stolen various items. (Id. at 2237-38.) He admitted that he had taken his
ex-wife into the desert and threatened to kill her, though he denied that he did so at
gunpoint. (Id. at 2233-34.) He agreed with defense counsel that he had “arguments” with
his current wife but denied threatening “to blow her head off with a .22.” (Id. at 2235.)
He also agreed with defense counsel that he once inquired about a jar of money in a store,
but denied saying “if I held a .22 to your head, you=d give me that?” (Id. at 2236.)
The purpose of Rule 608(b)'s prohibition of extrinsic evidence is to avoid “holding
mini trials on irrelevant or peripheral matters.” U.S. v. Riddle, 193 F.3d 995, 998 (8th Cir.
1999). However, the trial court has wide discretion on allowing “questioning during
cross-examination on specific bad acts if those acts concern the witness's credibility.” Id.

MEMORANDUM DECISION AND ORDER - 31

Here, the trial court allowed a thorough testing of Jeff=s credibility through crossexamination about his prior bad acts. The trial court permitted limited questioning about
several bad acts and domestic violence. The Court prohibited Petitioner from introducing
evidence that slightly bore on credibility—that he sold a watch to a bartender (apparently
an attempt to raise an inference that Jeff is a thief), and that he threatened to use a gun to
steal money from a hearing aid shop in 1994. Given the wide latitude the trial court gave
Petitioner, disallowing the extrinsic evidence or questioning about these marginally
relevant topics did not make Petitioner’s trial fundamentally unfair.
This is not the end of Petitioner’s argument about Jeff. Petitioner characterizes the
trial court=s ruling not simply as one touching on Jeff’s credibility, but one that cut off
relevant evidence of an “alternate perpetrator” that was admissible independently of
whether it impeached Jeff=s credibility as a testifying witness. That is a different question.
Contrary to Petitioner’s argument, this is not a case in which a state evidentiary rule was
applied arbitrarily to prohibit a criminal defendant from introducing strongly probative
evidence that ties a third person to the crimes charged. See, e.g., Holmes, 547 U.S. at 327
(finding a constitutional violation based on a state rule that excluded a person=s partial
admission to the crime and other testimony that he was in the area at the time of the
murder); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (holding that a
state=s hearsay rule could not be applied mechanistically to exclude a third party=s
confession).
Petitioner simply did not have strong, reliable, relevant alternate perpetrator
evidence. What he had instead was collateral evidence that may have illustrated Jeff=s
MEMORANDUM DECISION AND ORDER - 32

poor character or propensity to be violent, but it lacked any true connection to the
Downards or the crime. Petitioner has cited no authority for the proposition that a trial
court=s exclusion of third party character or propensity evidence that is not connected to
the crimes charged or to the victims in the case is unconstitutional. The case law that
exists cuts decidedly in the opposite direction. See Holmes, 547 U.S. at 327 (accepting
rules that exclude evidence of third party guilt where it is speculative, remote, or does not
tend to connect the third party sufficiently to the crime).
Nor was Petitioner actually prevented from supporting his theory that Jeff was the
more likely culprit. He did so through his cross-examination of Jeff and other witnesses,
and through the presentation of numerous witnesses during the defense case-in-chief. The
jury heard that Jeff was with the Downards on the day of homicides and was the initial
focus of the investigation. The jury also learned that Jeff had once stolen the murder
weapon long before the murders, had sneaked into the Smiths= home to steal various other
items, owned a pair of shoes that had a similar pattern to the footprint in the Downards=
home, gave inconsistent statements to the police and omitted a few important details, and
may have asked to borrow the Downards= truck only to be rebuffed. Jeff essentially
admitted during his cross-examination that he had previously engaged in conduct that
could be characterized as violent and threatening, even though he may not have agreed
with everything that Petitioner=s counsel suggested.
Under these circumstances, the trial court=s ruling was a “reasonable restriction[]
based upon . . . legitimate interests in the criminal trial process.” United States v.
Scheffer, 523 U.S. 303, 308 (1998) (citations omitted). Petitioner has not shown that he
MEMORANDUM DECISION AND ORDER - 33

was deprived of a meaningful opportunity to present a defense. No relief is warranted on
Claim B, with or without the new evidence.
CLAIM C: INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner asserts seven different ineffective assistance of counsel claims under the
Sixth and Fourteenth Amendments. Some of these claims were properly exhausted and
some are procedurally defaulted. Some are timely, and some appear untimely.
Regardless, assuming without deciding that Petitioner can meet the procedural hurdles to
present his claims, the Court reviews the merits of each.
1. Standard of Law
Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective assistance of
counsel claims. The first prong of the Strickland test, “deficient performance,” requires a
showing that counsel’s performance “fell below an objective standard of reasonableness,”
id. at 688, or was “outside the wide range of professionally competent assistance,” id. at
690.The test is “highly deferential,” evaluating the challenged conduct from counsel’s
perspective at the time at the time counsel acted. Id. at 689.
The second prong of the Strickland test, “actual prejudice,” requires the petitioner
to demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the
result of the [trial] would have been different.” 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
2.

Claim C(3): Trial Testimony

Petitioner alleges that his counsel failed to advise Petitioner adequately about his
right to testify and failed to assist Petitioner to exercise that right. This claim was not
MEMORANDUM DECISION AND ORDER - 34

presented to the Idaho Supreme Court, and hence, it is procedurally defaulted. Assuming
without deciding that Petitioner can show excuse for the procedural default of this claim,
the Court concludes that it has no merit.
A. Underlying Standard of Law regarding Trial Testimony
There is sparse United States Supreme Court precedent governing the right to
testify. Although several cases mention the right to testify, the actual claims at issue were
not about whether the defendant had the ultimate right to testify or “overrule” a defense
attorney’s advice that the defendant should not testify. The following cases are
illustrative of those cited by courts that have faced a right-to-testify issue; because each
case is different from the facts in this case, the central factual issue and legal context of
each case is noted in parentheses below.
In a criminal case, the defendant “has the ultimate authority to make certain
fundamental decisions regarding the case, as to whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal.” See Jones v. Barnes, 463 U.S. 745,
751 (1983) (no right to force counsel to raise nonfrivolous claims on appeal). An
accused’s right to testify is protected by the Fifth, Sixth, and Fourteenth Amendments,
but the right can be limited. Rock v. Arkansas, 483 U.S. 44, 51-54 (1987) (no right to
introduce defendant’s own hypnosis-induced statements).
“A criminal defendant may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution.” United States v. Mezzanatto, 513
U.S. 196, 201 (1995) (waiver of exclusionary provisions of plea-statement rules). A

MEMORANDUM DECISION AND ORDER - 35

waiver is valid as long as it is knowing, voluntary, and intelligent. United States. v. Ruiz,
536 U.S. 622, 629 (2002) (waiver of Brady right in guilty plea context).
The right to testify is tied to the right to effective assistance of counsel, because
the decision whether to testify must be made in the context of the overall strategy of the
case. The “purpose of the constitutional guaranty of a right to counsel is to protect an
accused from conviction resulting from his own ignorance of his legal and constitutional
rights.” Jones, 304 U.S. at 465. Therefore, whether a defendant testifies usually is
attributed to the tactical strategy of counsel, who has weighed the benefits and risks of
testifying, including exposing the defendant to cross-examination. “[A]bsent exceptional
circumstances, a defendant is bound by the tactical decisions of competent counsel.”
Reed v. Ross, 468 U.S. 1, 13 (1984).
The United States Supreme Court has instructed that the “determination of
whether there has been an intelligent waiver of the right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458,
464 (1938) (emphasis added). The Supreme Court has not particularly applied this
contextual analysis to a waiver of the right to testify, but lower federal courts have done
so, rejecting arguments that defense counsel or a state court must follow a specific
formula to render a waiver of the right to testify valid.
In United States v. Edwards, 897 F.2d 445 (9th Cir. 1990), the United States Court
of Appeals for the Ninth Circuit explained that it had joined other circuits and the
majority of states in concluding that the trial court has no duty to advise the defendant of
MEMORANDUM DECISION AND ORDER - 36

the right to testify, nor is the court required to place a waiver of the right to testify on the
record. Id. at 446. The court reasoned that the “broad rule that the court has no duty sua
sponte to advise a defendant of his right to testify would be meaningless if it were
possible for defendants to obtain new trials simply by claiming ignorance of the right.”
Id. at 447. In United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993), the Ninth Circuit
Court held that, “[i]f the defendant wants to testify, he can reject his attorney’s tactical
decision by insisting on testifying, speaking to the court, or discharging his lawyer.” Id. at
177 (citing Martinez, 883 F.2d at 761). In other words, “waiver of the right to testify may
be inferred from the defendant’s conduct and is presumed from the defendant’s failure to
testify or notify the court of his desire to do so.” Id. (citing Edwards, 897 F.2d at 446, and
Martinez, 883 F.2d at 760).7
B. Discussion
In light of the foregoing standards, Petitioner cannot establish that his counsel’s
performance was deficient. In a 2010 deposition, Petitioner’s lead trial attorney, Stevan
Thompson, testified about the circumstances surrounding Petitioner’s decision not to
testify. He testified that he and co-counsel explained to Petitioner “what he had a right to
do and what he could get up and try to say.” (Dkt. 63-2, p.3.) Thompson did not
remember Petitioner ever saying that he definitely wanted to testify or did not want to
testify. Rather, Thompson recalled that “[t]his was not a situation where you—where
Lanny said: I want to testify, but you would not let him,” and “[t]his was simply a

7

Other circuits use different legal standards. See Boyd v. U.S., 586 A.2d 670 (D.C. Ct. App. 1991) (collecting cases
under three different approaches).

MEMORANDUM DECISION AND ORDER - 37

situation where, based on your best advice, he was following your advice and agreed not
to testify.” (Dkt. 63-2, p. 11.)
Petitioner’s psychological tests indicated that he had a less-than-average
intelligence quotient, but he was not “retarded” and could understand the nature of the
proceedings against him. Many witnesses testified in court that they regularly carried on
conversations with Petitioner, and that he engaged in planning out his days, worked two
different jobs, and otherwise was able to function as any person of average intelligence.
Petitioner was not a proactive client. (Dkt. 63-2, p. 2.) As to the decision to testify,
Thompson explained:
[A]t some point, we made the decision not to put Lanny on. I think more of
it was a concern that we did not know what he would say on crossexamination; how he would respond to the questions and—because I had a
lot of respect for Tom Moss [the prosecutor] at the time.
I just felt he would probably do a pretty good job of cross-examining
Lanny to the point of doing everything he could to get him upset and get
him frustrated, get him confused. I did—I felt that was going to hurt us
more than help us, I guess.
(Dkt. 63-2, p. 3.)
Under case law set forth above, because Petitioner was informed as to the decision
to testify and did not assert his right by testifying firing his counsel, or asking the Court
to permit him to do so, he has not shown that he was denied the right to testify. Because
the decision was bound up in the strategy of counsel, Petitioner has not shown that his
counsel made an unreasonable decision based upon psychologist opinions that Petitioner
could get easily frustrated, angry, and confused, and based upon Petitioner’s propensity
for making odd, incriminating statements. The fact that counsel had reasonable concerns
MEMORANDUM DECISION AND ORDER - 38

about Petitioner testifying in an extremely serious case cannot be second-guessed in this
habeas corpus proceeding. See Gerlaugh v. Stewart, 129 F.3d 1029, 1033 (9th Cir. 1997).
As to prejudice, Petitioner has not provided the Court with the specific content of
his proposed testimony. His briefing merely generalizes: “Petitioner would have refuted
the State’s theory on motive by explaining his sexual preferences, would have discussed
his relationship with the victims, and would have testified that he had not seen the victims
around the time of the murders. Petitioner also would have explained that his statement to
Bob Donovan8 was not an admission that it was his shoe print.” (Petition, Dkt. 134, p.
20.) Notably absent from Petitioner’s proposed testimony are any facts showing that he
was not in possession of the gun, not in the neighborhood before and after the shootings,
and not visibly upset after the shootings, and did not say and do the things that Mrs.
Huffaker reported.
The Court concludes that Petitioner has shown neither deficient performance nor
prejudice resulting from the strategic decision to not call Petitioner to testify at trial, and,
thus, this claim is subject to denial.
3. Claim C(4): Forensic Evidence
Petitioner asserts that his attorneys were ineffective for failing to do more to
challenge the ballistics and shoe print evidence tying Petitioner to the Downards’
murders. He asserts (a) trial counsel failed to effectively investigate and present forensic
evidence and failed to effectively challenge the State’s forensic evidence; and (b) trial

8

This appears to be a mistaken reference to Brian Ravenscroft.

MEMORANDUM DECISION AND ORDER - 39

counsel failed to retain qualified, independent forensics experts; (c) trial counsel failed to
adequately investigate shoe impression evidence, failed to effectively cross-examine the
State’s experts, and failed to present competent expert testimony to rebut the State’s
experts; (d) trial counsel failed to adequately investigate ballistics evidence; and (e) trial
counsel failed to properly examine, obtain, test, and preserve key forensic evidence.9
Rather than address these assertions separately, the Court will organize its discussion of
Petitioner’s two defense attorneys’ performance around each type of forensic evidence.
This is a procedurally defaulted claim that is reviewed de novo.
Preliminarily, it is important to note that Petitioner’s challenge to the forensics
evidence is related to his request for additional discovery in this matter. He asserts that he
cannot show prejudice arising from this claim if he cannot do discovery to support his
claims. Essentially, Petitioner would like to go back 20 years in time and re-test all of the
evidence, depose all of the experts, and create a new defense for himself. For three
reasons, the Court concludes that this is not a prudent or required course of action. The
first is that Petitioner’s counsel did an adequate job of investigating the forensics and then
formed a strategy around the findings and investigation—and a defense attorney’s
strategy is virtually unchallengeable. The second is that the conviction is supported by a
wide range of witness testimony as to motive, opportunity, possession of the weapon, and
admissions related to the shooting. The third is that the expert witnesses on both sides

9

Petitioner also argues in a footnote that the trial court’s decision in permitting Greenwade to testify violated
Petitioner’s due process right under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (Dkt. 134, p. 25,
n.11.) Petitioner argues that Greenwade was not qualified to render the opinion about whether a photograph anomaly
matched a nick in Petitioner’s shoe, but the trial court overruled the objection of Petitioner’s counsel. The Court
does not treat this as a separate claim, as it is not properly presented in a footnote.

MEMORANDUM DECISION AND ORDER - 40

more or less agreed with each other, and there is no inkling in the record showing the
testing done by the forensics laboratories and the expert witnesses was done incorrectly
or that different test outcomes would result upon retesting. Federal habeas corpus review
is not a forum amenable to fishing expedition.
C. Shoe Impressions
Two shoe prints were found at the scene. A partial shoe print was found in the dirt
outside the Downards’ home, and a cast was made from the print. Another partial
impression was left in the dust near Mrs. Downard’s bed, and photographs were taken of
this print. Both prints were made by a pair of FootJoy shoes. Petitioner owned a pair of
82 FootJoys, and Jeff owned a pair of 92 FootJoys. Both pairs were seized as evidence.
The State’s shoe print expert, Donna Shepherdson, had about 120 hours of training
in footwear evidence, having attended classes taught by leading experts in the field, Bill
Bodziak and Roger Davis; Shepherdson had been qualified as an expert in footprint
identification in the past. (State’s Lodging A-11, pp. 1851-52.) Shepherdson testified that,
using the photographs of the partial dust print, photographs of the floorboards on which a
ruler was displayed to show the length of the floorboards, and the two pairs of shoes, she
made a simple calculation based on the width of the floorboard and found she “could
eliminate the larger shoe of being outside the range,” but she “could not eliminate at this
[early] point, the smaller shoe, the size eight and a half shoe.” (Id., p. 1856.) She then
used a second method, making a one-to-one enlargement of the photograph, whereupon
she made transparent overlays of the bottom of the shoes using black fingerprint powder
for comparison purposes. This second test showed the same results as the first: the larger
MEMORANDUM DECISION AND ORDER - 41

shoe could be “absolutely” eliminated, while the smaller shoe could not be eliminated.
(Id., pp. 1856-59.)
As to the cast made from the other shoe impression found in the dirt outside the
home, Shepherdson testified that, preliminarily, she thought the print could have been
made by either set of shoes, but the State did not give her enough time to proceed with an
in-depth analysis. (Id., p. 1855.) Later, she revisited the casts when she had the one-toone photographs for comparison purposes, and she determined that the larger shoe could
be eliminated, but the smaller could not. (Id., pp. 1862-63.)
On cross-examination, Petitioner’s counsel had Shepherdson clarify that she
“absolutely” would not and could not testify that the dust print came from a size 82
FootJoy. (Id., p. 1869.) In addition, defense counsel had Shepherdson repeat several times
that she didn’t believe that the angle of the camera on the dust print photo made a
significant difference in her analysis. (Id., pp. 1873-76.) Counsel also asked Shepherdson
if she had found some “identifying characteristics” of the shoe to use for matching
purposes, and she said she had not. (Id., p. 1878.) Counsel also had Shepherdson admit
that the preferred method in the science of the day was to take the original photos in
black and white, but that the photos in this case had been taken in color. (Id., p. 1879.)
Having anticipated that matching the size 82 shoe to the photograph might be
questioned based on the quality of the photograph, the State also hired Dr. Eric
Greenwade, a mathematician, to create a digitally-enhanced image, in an attempt to
match the dust print to either the size 82 or 92 shoe. Greenwade explained the reason he
was retained:
MEMORANDUM DECISION AND ORDER - 42

Q.

Describe the problem that was presented to you.

A.

The basic problem as was explained to me was there was a
photograph taken that was taken under non-optimal
circumstances. And I was asked if there was anything that I
could do to remediate some of the effects that may have
occurred from taking the photograph in a less than optimal
condition.

Q.

And what was your response to that?

A.

My response was that I believe that this was do-able because
it followed the same procedures that we use in our day-to-day
work using the same hardware and the same software that we
use to do our normal activities.

(State’s Lodging A-10, pp. 1747-48.)
Greenwade testified that the process was called “digital image warping,” a
“technique that had been used for over twenty years,” and that was commonly used in
areas such as medical imaging and satellite photography. After first testing a set of
unrelated shoes that he matched to a set of photographs taken of a dust print of the shoes,
he thought that that the technology could be applied to the actual shoes and photographs
from the crime scene and proceeded to test the evidence from the crime scene. (Id., pp.
1748-51.)
At trial, Greenwade testified about his methods and his conclusion that the 82
shoe matched the dust print photograph very well, and the 92 did not. Greenwade used
the measurements of the hardwood floor slats to create an accurate measurement for the
photograph to make up for the lack of a ruler in the photograph. He testified at length
about his complex system of analysis, and how he matched up several points to arrive at
the correction calculations and conclusions.
MEMORANDUM DECISION AND ORDER - 43

Greenwade was also permitted to testify that he found an “anomaly” in the
photograph that could be matched to a nick in Petitioner=s shoe. Greenwade concluded:
“Based on the measures that I made on the corrected photograph, the three features
identified in the residue footprint were consistent with the size eight and a half FootJoy
and were very much out of range with respect to the nine and a half.” (Id., p. 1783.)
Defense counsel objected to the testimony about matching the anomaly in the
photograph to the nick in the shoe. Counsel was permitted to voir dire Greenwade
thoroughly in front of the jury about Greenwade’s utter lack of expertise to evaluate shoe
impression evidence, with Greenwade admitting several times that he had zero
experience in forensic shoe print identification. (Id., pp. 1789-98.) As a result of
counsel’s objection, the trial court ruled that Dr. Greenwade was not considered “an
expert as a criminologist” or an “expert in footwear identification as in the classical sense
of criminologists,” but only as an expert in the field of “scientific visualization.” (Id., p.
1798.) The court ruled that Petitioner’s counsel’s objection went to weight and not
admissibility and said, “[T]he jury has heard your concerns and their concerns that go to
the weight of his testimony.” (Id., p. 1798.)10
Prior to trial, Petitioner’s attorneys were faced with the issue that Greenwade,
Shepherdson, and Fox all had eliminated the larger FootJoy shoe as having made the
prints at the Downards’ residence. In addition, at trial, Petitioner’s acquaintance, Brian
10

Petitioner also takes issue with Thompson’s failure to repeat all of his in camera voir dire questions in front of the
jury, because, in hindsight, counsel wished he would have done so. (Dkt. 63-1, p. 48.) The Court finds no deficient
performance in this circumstance. Petitioner’s counsel asked sufficient voir dire questions of Greenwade in front of
the jury for the court to emphasize to the jury that the court did not consider Greenwade a shoe impression expert,
and, together with presenting Fox’s testimony challenging the Greenwade work as unnecessary and unorthodox,
counsel’s performance was adequate.

MEMORANDUM DECISION AND ORDER - 44

Ravenscroft, testified that Petitioner told Ravenscroft that his shoeprint was found in Mrs.
Downard’s bedroom. (State’s Lodging A-13, p. 2585 et seq.) Defense counsel argued that
Jeff had stolen Petitioner’s shoes and worn them to kill the Downards. Defense counsel
called Fox to testify that he disagreed with Greenwade about going so far as to positively
identify Petitioner’s exact shoe and to offer his opinion about why Greenwade was
mistaken about the anomaly.
Petitioner asserts without support that Fox “was unqualified to assist with the shoe
impression evidence.” (Dkt. 134, p. 23.) However, the trial transcript showing that Fox
had been qualified as a footwear identification expert 50 or 60 times prior to testifying in
Petitioner’s case. (State’s Lodging A-14, p. 2696.)
Petitioner also argues that trial counsel should have retained more specialized
experts in the fields of ballistics and foot print evaluation rather than relying on a
generalist like Fox.11 The Ninth Circuit found a similar argument to be unpersuasive in
Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002). There, the petitioner alleged that his
trial counsel=s use of a psychologist in the mitigation phase of a capital case, rather than
an expert in the field of intoxication and brain science, amounted to ineffective assistance
of counsel. Id. at 876. Rejecting that argument, the Ninth Circuit noted that A[t]he choice
of what type of expert to use is one of trial strategy and deserves >a heavy measure of
deference.=@ Id. (citing Strickland, 466 U.S. at 691).

11

Petitioner also argues that his counsel did not do very much investigation before retaining Fox, but Thompson’s
deposition shows he consulted at least three other counsel about potential expert witnesses. (Dkt. 63-1, p. 11.)

MEMORANDUM DECISION AND ORDER - 45

Fox testified that he reviewed Shepherdson’s work and testified that he, too,
eliminated the 92 FootJoy from having made the dust print or the print outside the
house, but he could not eliminate the 82. (Id., pp. 2716 & 2760-61.)
Because Greenwade’s positive identification was not in line with the shoe experts’
opinions, defense counsel focused on the distinction between the shoe experts’ opinions
that the smaller shoe “could not be eliminated” based on its “configuration, its class, and
its size” (id., p. 2716), and the non-shoe-expert’s opinion that only Petitioner’s shoe
could have made the dust print. Only Greenwade testified at trial that he could make a
positive identification. Fox showed how the Shepherdson photograph did not match the
nick in the shoe. Fox testified that, if Greenwade’s theory was true about the spots on the
shoe showing on the photograph, then there were many spots shown on the photograph,
and that proved that Petitioner’s shoe did not make the shoe print in the dust. (Id., p.
2732-33.) Fox testified at length about shoe analysis and then testified that he placed “no
significance” on the anomalies by which Greenwade said he could positively identify the
shoe. (Id., p. 2742.)
Fox further testified that Greenwade’s work was unnecessary and unorthodox:
Q.

Mr. Fox, this computer technology [of Greenwade] . . . had nothing
to do with Mr. Greenwade’s finding as to these anomalies, did it?

A.

Other than – no. Other than the fact that he sees things in his
production on the screen. That program is not for identifying
footwear. Not for identifying individual characteristics. As I
understand it, it is for taking a photograph and in some way
digitizing it through his system and correcting for distortion. And
that’s what’s in his report. That’s what he’s used the system for.
That’s what we discussed. And he was very open in telling me about
his system.

MEMORANDUM DECISION AND ORDER - 46

Q.

And you’ve already testified as to whether or not there was much
distortion in this picture, correct?

A.

There is very little distortion in the photograph, in my opinion.

Q.

That’s Donna Shepherdson’s black and white that you’re referring
to?

A.

Yes.

(State’s Lodging A-14, p. 2763.)
Relying on unsupported hyperbole rather than fact, Petitioner argues: “The result
of putting Fox on the stand was disastrous—the State eviscerated Fox within the first
minute of cross-examination.” This argument is overstated to the point of being untrue.
On cross-examination, the State asked Fox whether he wrote reports on the shoes, the
firearms, or the pants. He responded that he examined the evidence but did not write
reports. Petitioner’s counsel bolstered Fox’s responses with an objection that there is no
requirement of written reports. The objection was overruled, because the court ruled the
State was entitled to know what Fox did and did not do—but the jury was made aware by
the objection that an expert was not required to produce a written report.
Petitioner fails to acknowledge that Fox’s job was different from the State’s
experts’ job. Fox was hired not only to perform an independent evaluation of the
evidence, but to review the reports, findings, and conclusions that the State’s experts had
made. Whether an expert prepares a report is often a matter of strategy. Without a report,
the expert’s testimony at trial can be more flexible, not having committed his opinion to

MEMORANDUM DECISION AND ORDER - 47

writing; the absence of a report also makes the task of cross-examination of a witness
more difficult for the adverse attorney.
Fox’s credibility was strengthened by his concessions that Shepherd was qualified
to evaluate shoe impression evidence and that he and she were in agreement on several
points: that the 92 could be eliminated, that the 82 could not be eliminated, that neither
could testify with certainty that Petitioner’s shoe made the impressions, and that the
photograph did not have substantial distortion. This testimony set the stage for Fox’s
extended testimony that Greenwade was not a shoe impression expert, how shoe
impression experts match a particular shoe to an impression, how Greenwade’s work was
unnecessary because the photograph did not have substantial distortion, how
Greenwade’s work substantially deviated from the manner in which shoe impression
experts performed identifications, and how specifics from the photographs and
Petitioner’s actual shoe did not support Greenwade’s theory that light and dark spots on
the corrected photograph corresponded to nicks in the shoe.
Petitioner’s attorneys did an adequate job with what they had to work with. Two
shoe print experts with extensive experience agreed that only a size 82 FootJoy could
have made both the dust and the dirt shoe impressions. Because the shoe size could not
be challenged, it made more sense to challenge the identity of the shoe and suggest Jeff
had taken Petitioner’s shoes and gun to kill the Downards. Petitioner’s counsel’s crossexamination of Greenwade to show his lack of credentials as a shoe expert and Fox’s
explanation of why Greenwade was wrong worked together to support the theory of the
case that Jeff, not Petitioner, had killed the Downards. Pointing to Jeff as the one who
MEMORANDUM DECISION AND ORDER - 48

wore the shoes on the night of the murder logically accounted for the testimony of all of
the experts and Ravenscroft.
Petitioner’s argument that trial counsel was ineffective for failing to consult with
or retain an expert to review Greenwade’s work, despite counsel’s “awareness” that Fox
“was not qualified to review the techniques utilized by Greenwade to produce the
enhanced photo” misses the point of the strategy selected by counsel that was, in part,
necessitated by the fact that the qualified shoe impression experts agreed that an 82
FootJoy made the shoe impressions and the fact that Petitioner admitted it was his shoe
print found in Mrs. Downard’s bedroom. Rather than fighting the battle at the level of
dueling mathematicians—the intricacies of whose work probably would not have been
understood by the jury anyway—counsel chose to focus on the court-qualified shoe
impression experts and a simpler argument that no correction was needed and that the
non-shoe expert had made elementary mistakes shoe experts would not make. “That
[‘Greenwade was not a footprint expert and really went beyond his expertise’] was an
important distinction I think that we felt we needed to make,” said Thompson of the
decision. (Dkt. 63-1, p. 40.) Counsel’s overall strategy regarding the evidence he had to
work with—that it was almost certainly Petitioner’s shoe print—was not unreasonable
simply because he did not hire more or different experts.
Petitioner seems to be arguing that Thompson should have shopped until he found
an expert who would have disagreed with the State’s experts on the shoe impression (and
ballistics) findings. Not so. Here, too many experts agreed that the forensics pointed to
Petitioner, and Petitioner has not been able to show a hint of evidence in 20 years that
MEMORANDUM DECISION AND ORDER - 49

they were all wrong together. Good lawyering is not about creating favorable evidence, it
is about making the best defense that can be made, despite unfavorable evidence, which
is exactly what Petitioner’s counsel did.
Part of Petitioner’s argument that Fox “was eviscerated” by the prosecutor on
cross-examination also relies on the prosecutor’s questions about Fox’s ballistics testing
that the prosecutor knew fell clearly outside the scope of direct examination—this
questionable behavior by the prosecutor shows neither that Fox was incompetent nor that
his attorneys were ineffective. Petitioner’s counsel strategically did not ask Fox about the
ballistics on direct examination because Fox agreed with the three state experts that the
bullets came from Petitioner’s Fieldmaster .22. However, on cross-examination of Fox,
the prosecutor began asking him questions about the ballistics. It is unfathomable that the
prosecutor did not know exactly what he was doing when he asked Fox whether he had
reviewed the ballistics evidence in the case and then asked the question, “You don’t
dispute the firearms ballistics testimony . . . ,” whereupon he was interrupted by defense
counsel’s objection that the question was beyond the scope of direct. The objection was
sustained, but, as Petitioner argues, the asking of the question left the inference that Fox
had reviewed the ballistics reports of the State experts, had agreed with the findings, but
had not testified to avoid harming Petitioner’s case. (Id., pp. 2749-50.) Again, this
unfortunate colloquy was the fault of the prosecutor, who was too skilled not to know
what he was doing, but it does not follow, as Petitioner argues, that this was a reason that
defense counsel should have retained two different experts. Neither defense counsel nor
his expert need anticipate bad behavior from the prosecution. (Dkt. 63-1, p. 13.)
MEMORANDUM DECISION AND ORDER - 50

Petitioner further argues that his counsel should have retained separate experts to
refute the Shepherdson and Greenwade testimony, rather than having Fox analyze the
shoe print evidence and the ballistics evidence. Petitioner provides no evidence
whatsoever that any other expert of the same era would have disagreed with Shepherdson
and Fox, and does not explain a factual basis that would have supported a different
opinion. Petitioner does not provide any concrete evidence that either of these experts
were incompetent to do the task they were hired to do. In fact, the prosecutor recognized
that both Fox and Shepherdson were experts in their field when he argued, “The defense,
ladies and gentlemen, I suggest wants you to believe that footprint identification is some
esoteric science”—“[o]nly able to be done by people such as Mr. Fox and Ms.
Shepherdson.” (Dkt. 62-3, p. 37.)
As to prejudice, Petitioner simply ignores the bottom line, which is that, regardless
of whether one or ten mathematicians testified at Petitioner’s hearing, two recognized
shoe impression experts agreed that the 82 could not be eliminated and the 92 could be
eliminated, and a witness testified that Petitioner admitted that his shoe made the
Downard bedroom shoe print. There was not a host of suspects who owned size 82
shoes. Therefore, Petitioner’s counsel’s efforts with expert witnesses regarding the
forensics evidence was adequate.
D. Ballistics Evidence
The State presented testimony from two ballistics experts, either because the
reputation of the first, Martin Ols, had been tarnished as a result of testimony in other
cases, or, as was represented at trial, he took a job with the Bureau of Alcohol, Tobacco,
MEMORANDUM DECISION AND ORDER - 51

and Firearms at the National Laboratory in Maryland. The second expert was Rocky
Mink, the Oregon State Police Directing Criminalist in the Ontario Forensic Laboratory.
Both concluded that the casings found at the crime scene were ejected from the .22
Remington Fieldmaster rifle that investigators had seized from Lynn Smith=s gun cabinet.
Ols and Mink also referenced a third review performed by the State of Wyoming
Forensic Laboratory.12
Mink, like Fox, was a general criminologist who was qualified to testify on
firearms and toolmark identifications and comparisons, as well as drug analysis, trace
evidence, blood alcohol, and footwear impressions. (State’s Lodgings A-8, p. 1161.)
Mink testified at trial about his findings and conclusions:
“I found microscopic detail present in the firing pin impression, the
extractor mark, and the ejector marks that were of significant enough
character to allow me to conclude positively that the cartridge case, or the
cartridge cases demonstrating that detail were as I’ve stated in my report,
fire, in, extracted from, and ejected from the mechanism of State’s Exhibit
64-A, the suspect Remington rife.”
(State’s Lodging A-8, p. 1147.)
Thompson cross-examined Mink on why the firing pin impression detail from
casing to casing appeared different in the photographs. Counsel also questioned Mink on
the fact that matching weapons to casings was not an exact science, and that, earlier,
Mink had described the final stages of his identification process as a “feeling based on
whatever microscopic detail” he observed. (State’s Lodging A-8, p. 1162.) Thompson did
not make much headway on cross-examination of Mink, as Mink was able to explain
12

A third state firearms expert, Richard Cravello of Wyoming, apparently also reviewed the ballistics evidence.
(Dkt. 63-2, p. 2.)

MEMORANDUM DECISION AND ORDER - 52

himself well on virtually every point counsel questioned. This does not necessarily point
to a deficiency in counsel’s performance, but seemed to be attributable to Mink’s skill at
testifying and his experience in ballistics analysis. Thompson understood the state of
ballistics evidence during that era: “[W]hat concerned me a little bit with the whole
ballistics science of ballistics was that it does really come down to somebody that has a
lot of experience looking through a comparison microscope kind of knowing it when you
see it, that the striations match on the bullets. It’s not like a fingerprint, particularly.”
(Dkt. 63-1, p. 12.) That said, Thompson realized the fact that the experts agreed with each
other was problematic: “[W]hen [Fox] reviewed it he could not disagree with them
particularly as to the shell casings. That is usually the most damaging because the firing
pin imprint usually is kind of like a fingerprint.” (Id., p. 13.)
To challenge his counsel’s circa 1996 decisions on the ballistics investigation,
Petitioner unabashedly relies on a 2009 treatise, Strengthening Forensic Science in the
United States: A Path Forward, published by the National Research Council of the
National Academies (NRC Report). Petitioner seems to be arguing that the State’s three
ballistics experts in 1996 should have been criticized for following 1996 state-of-theindustry standards,13 and that Petitioner’s counsel should have sought out an expert who

13

Mink testified that “there’s no particular number [of points] that’s established as meeting a criteria for
identification.” (State’s Lodging A-8, p. 1162.) He clarified: “The field of firearms examination comparison has
over the years conducted a number of series of tests comparing both random stria, random microscopic detail. And it
is the basic feeling or consensus of one schooled in firearms examination and comparison that if you have
significant microscopic detail, that again you can consistently account for, consistently produce, consistently
associate with a particular area, surface, item, object, et cetera, it is a positive identification.” (Id., pp. 1164-65.)

MEMORANDUM DECISION AND ORDER - 53

had the clairvoyance to not follow industry standards, but to use standards that were not
to be identified until many years later.14 This is an untenable and unsupported argument.
Petitioner also exaggerates the import of the treatise to his particular case. The
treatises does not state that bullet identification is impossible or unreliable; it simply says
there are no uniform standards, as Mink testified, and that it is possible to make these
types of identifications if the experts have experience at what they do. Despite the high
standards for habeas corpus relief, Petitioner posits a superficial proposition to support
his assertion that he is entitled to relief: “Given the NCR Report, Mr. Mink’s level of
certainty seems unwarranted and overstated.” (Dkt. 134, p. 32.)
Because Petitioner’s attorneys made a reasonable decision to work with the
consistent expert opinions in front of them—all of them in agreement that the bullets
came from Petitioner’s Fieldmaster .22—they chose to fashion a defense that would
focus on Jeff=s possible access to the murder weapon, rather than trying to find a
champion willing to try to slay three or four experts with a single contrary opinion.
Thompson explained: “[T]he problem we kept coming back to is: Everybody was telling
us that it looked like that gun fired the shells. We were sort of dulling our axe on it being
some other gun at that point in time.” (Dkt. 63-1, p. 16.) This was not an objectively

14

Again proffering broad generalities rather than facts, Petitioner argues that Fox shouldn’t have been used because
he “had some unusual theories about ballistics testing” and that some of Fox’s views were “a little bit out in left
field.” These statements were from a deposition of David Parmenter, counsel for Paul Rhoades, in a death penalty
case arising from a 1987 murder that was before this Court on habeas corpus review many years ago. These
statements are unaccompanied by any explanation of the foundation for the statements. For example, it is unknown
whether Fox was ahead of his time in 1996 and had views more like those expressed in the 2009 treatise, or whether
they were simply contrary to any ballistics standards, whether in 1996 or 2009. The Court finds these statements
unpersuasive without a context, which Petitioner has chosen not to provide.

MEMORANDUM DECISION AND ORDER - 54

unreasonable strategic decision. See Strickland, 466 U.S. at 691 (counsel may Amake a
reasonable decision that makes particular investigations unnecessary@).
Putting aside the very real question of whether Petitioner actually could have
found an expert in 1996 to disagree with the other four experts, he emphasizes the need to
have brought forward a ballistics expert to rebut the Martin Ols testimony based on Ols’
incompetence. For example, at Jeff ‘s preliminary hearing, Ols testified that he thought
there was one extractor on Petitioner’s rifle, and on cross-examination at trial, he
admitted that he had made a mistake and there were actually two extractors. At the
preliminary hearing Ols testified that the firing pin impressions on the evidence he
examined were limited, but at trial he testified that he concluded that the casings were
fired from “only” Petitioner’s gun. (Id., p. 1204.) He based his opinion on firing pin
impressions, particularly, breach-face marks; extractor marks, and ejector marks. (Id., pp.
1205-06.)
Petitioner ignores the portion of the trial transcript that shows his counsel covered
these points skillfully during his examinations of the experts. Counsel showed that Ols
was only classified as a firearms technician, and that he did not have the requisite training
to be a certified FBI firearms examiner. (State’s Lodging A-8, pp. 1197- 1202.) The
Court ruled that Ols had “the minimum qualifications” to give an opinion on the firearms
evidence, and that his opinion “has some probative value,” but that the weight would be
left up to the jury. (Id., p. 1204.) Counsel pointed out the difference in Ols’ preliminary
hearing testimony about the “limited” nature of the firing pin impressions, but Ols

MEMORANDUM DECISION AND ORDER - 55

rebounded by that he had seen better and worse impressions, and had been able to make
identifications from worse than those in this case. (Id., p. 1214.)
Defense counsel also asked Ols if, in the Rauland Grube case, an FBI firearms
examiner said that Ols’ tests for shotgun patterns were invalid.15 Ols responded that he
had been told about the FBI expert’s testimony, but had never been given an opportunity
to read the expert’s report or do any further on that particular case. (Id., p. 1215.) Other
cross-examination of Ols tended to show that he was not been especially careful in his
testing, such as the fact that he was injured in a test-fire of a weapon because he did not
check the locking mechanism before firing it (not in this case). (Id., pp. 1209-11.) Despite
Ols’ shortcomings, Thompson realized his cross-examination would not be “great,” given
the fact that both Mink and Fox agreed with Ols. (Dkt. 63-1, p. 18.) This was a function
of the evidence and the chosen strategy based on the unfavorable nature of the evidence,
not deficient performance.
Like the shoeprint evidence, neither counsel nor the expert he selected can be
faulted where all three experts have agreed that the bullet casings from the crime scene
matched Petitioner’s rifle. After retaining one expert, counsel was not required to shop
for an expert willing to proffer an opinion that supported Petitioner’s case. Hendricks v.
Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995). Petitioner’s counsel also did an adequate
job cross-examining both States’ experts to show the weaknesses of their analyses. No
deficient performance is evident in the record regarding the ballistics.
15

A shotgun was not used in Downard crimes; Petitioner has not shown how the question of whether Ols was adept
at analyzing a shotgun blast, as opposed to a .22 bullet casing, is especially relevant. As with much of his other
argument, Petitioner relies on broad generalizations that do little to bolster his case.

MEMORANDUM DECISION AND ORDER - 56

Not only has Petitioner failed to show deficient performance, he has not shown
actual prejudice, as required by Strickland. Petitioner has not come forward in any
proceeding with even an inkling to show that a different expert would have been able to
refute the findings of the State’s experts, and that he should be given additional public
funds to re-test the unanimous opinions that were sought in the 1990s.
E. Sex Crimes Kits
Petitioner also asserts that counsel could have done more to independently test the
sex crimes evidence. A police report prepared by Morgan J. Hendricks noted that there
was no evidence of “sexual contact or assault or defense wounds on or inside” either Mr.
or Mrs. Downard’s body at the time of autopsy. (Dkt. 64-2, pp. 21-22.) Officer Greg
Black testified that a sex crimes kit was done and delivered to Don Wyckoff, a forensics
scientist for the Idaho Department of Law Enforcement. (State’s Lodging A-8, p. 983.)
Donald Wyckoff, supervising chemist for the Idaho Bureau of Investigation, testified that
there was no semen found on either one of the victims, and that the sex crimes kits were
negative. (State’s Lodging A-11, p. 1897.) Mrs. Downard was found clothed in her
underwear top and bottom, pajama top and bottom, and robe. (State’s Lodging B-1, p. 70;
Dkt. 63-4, p. 31.)
Petitioner has not provided anything to show that Wyckoff performed the tests
completely wrong and missed any semen.16 The evidence of Mrs. Downard’s fullyclothed body and state lab finding of no presence of semen made it unnecessary for
16

While Petitioner asserts in a footnote that a photograph shows that there was semen on the bedsheets, he does so
without citation to the record or providing a copy of the photograph to this Court. (Dkt. 139, p. 9, n. 3.) There is
nothing in the record before this Court supporting the proposition that the killer left his semen on the bedsheets,
especially given that there was none found on Mrs. Downard’s fully-clothed body.

MEMORANDUM DECISION AND ORDER - 57

Thompson to pursue this avenue any further. Hence, there is no deficient performance,
and Petitioner has shown no prejudice.
F. Hair Samples
Hair samples were collected from Jeff and Petitioner to try to match them up to
hair samples at the scene. Donald Wyckoff, supervising criminalist for the Crime Lab in
Pocatello, testified that nothing significant came of the hair and fiber samples testing in
this case. (State’s Lodging A-11, p. 1885.) Petitioner has provided nothing that would
show that Wyckoff’s testing methods or conclusions should be questioned at this late
date. This claim fails for lack of prejudice.
G. Jeff’s Pants
Wyckoff determined that the spot on Jeff’s pants could be blood, but the
preliminary test that was done could have been a false positive. The next step was to have
a second test performed to verify whether it was, in fact, blood. The fabric containing the
spot was sent to the Serological Research Institute in Richmond, California, which did
additional testing and determined that the spot had a negative presumptive test for blood
and “could not be confirmed as being blood.” (Dkt. 139-1, pp. 24-25.) The State provided
the fabric to defense for testing, but no further testing was done. (State’s Lodging A-11,
pp. 1890-94.)
Here, perhaps counsel could have done more, but, again there is nothing to suggest
that another test would yield a different result. Even if counsel was deficient on this
point, given the strength of the other evidence pointing to Petitioner as the perpetrator,
Petitioner has failed to show prejudice.
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H. Conclusion
These observations from Harrington v. Richter, 562 U.S. 86 (2011), applicable to
either a deferential or a de novo habeas corpus review, appropriately describe Petitioner’s
counsel’s performance regarding the forensic evidence:
Strickland does not enact Newton’s third law for the presentation of
evidence, requiring for every prosecution expert an equal and opposite
expert from the defense. In many instances cross-examination will be
sufficient to expose defects in an expert's presentation. When defense
counsel does not have a solid case, the best strategy can be to say that there
is too much doubt about the State's theory for a jury to convict. And while
in some instances “even an isolated error” can support an ineffectiveassistance claim if it is “sufficiently egregious and prejudicial,” Murray v.
Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), it is
difficult to establish ineffective assistance when counsel's overall
performance indicates active and capable advocacy.
562 U.S. at 86.
Representation is constitutionally ineffective only if it “so undermined the proper
functioning of the adversarial process,” depriving the defendant of a fair trial. Strickland,
466 U.S. at 686. Here, the adversarial system functioned adequately. Petitioner was
afforded expert witness testing and analysis, the State’s witnesses were cross-examined
adequately, and nothing in the record shows that the testing and analysis done by the
entire cadre of experts was so inadequate that opposite results could have been achieved
with a different defense expert.
4. Claim C(5): Failure to Investigate New Evidence of Jeff Smith’s Guilt or
Move for a New Trial
Petitioner asserts that Thompson did nothing when he received the new
information about the Jamie Hill statement and the Robin Jacobson story during the twoMEMORANDUM DECISION AND ORDER - 59

year time period when he could have filed a motion for a new trial, or at least investigated
the information further.
Under Idaho law, a motion for new trial must be brought within two years after
judgment, which means after completion of a direct appeal. Idaho Code § 19-2407; I.C.R.
34; State v. Parrott, 57 P2d 509 (Idaho Ct. App. 2002). Thompson received the
information on November 2, 2000, and Petitioner’s appeal was rejected by the Idaho
Supreme Court on May 21, 2001. (State’s Lodging B-6.)
The claim that Thompson should have discovered this information on his own
prior to trial, or should have filed a motion for a new trial if it was undiscoverable prior to
trial, was presented on post-conviction appellate review (State’s Lodging D-1, pp. 10-11.)
The Idaho Court of Appeals addressed the claim narrowly, characterizing it as follows:
[T]rial counsel should have discovered J.J.’s allegations on his own at some
point prior to November 2000 in order to file a motion for a new trial based
on newly discovered evidence of Jeff’s guilt. This claim fails the deficient
performance prong of the Strickland test because, as discussed above, the
application and supporting evidence do not establish how counsel would
have discovered Jeff’s threat to J.H. had he investigated Jeff.
(State’s Lodging D-4, p. 8.)
Petitioner’s quarrel with how Thompson chose to bring this claim is a quarrel
based on strategy. Counsel did not bring this claim in a motion for a new trial, but in a
post-conviction petition. Counsel testified that he could have filed a motion for a new
trial, but, “at that time my thinking was to finalize the appeal and then pursue this issue
on a post-conviction relief.” (Dkt. 63-3, p. 9.) Petitioner offers no separate argument or
analysis on his claim—either as to the deficient performance or the prejudice prong of
MEMORANDUM DECISION AND ORDER - 60

Strickland. Because a hearing on the motion for new trial would have resulted in the same
conclusions as were reached in the post-conviction matter, Petitioner has not shown that
he would have been granted a new trial. Therefore, counsel was not deficient for selecting
a post-conviction presentation rather than a new-trial presentation, and no prejudice
resulted from counsel’s decision not to pursue these claims in a motion for new trial and
instead include them in a post-conviction action, where a full evidentiary hearing was
held.
5. Claim C(6): Beverly Huffaker Testimony
Petitioner=s next claim centers on the impeachment of Mrs. Beverly Huffaker.
Petitioner argues that counsel should have done more to show that Mrs. Huffaker’s
testimony was unreliable. This claim is procedurally defaulted. At trial, Mrs. Huffaker
testified that she and her son, Scott Huffaker, met with Petitioner early in the morning of
March 22, 1992, after they had returned from a gambling trip to Nevada. She claimed that
Petitioner told her that “something bad had happened.” She recalled the date, in part,
because Scott had won $400 gambling and he used that money to buy a gun. Scott also
testified and confirmed that the encounter occurred on the weekend of March 21 and 22.
Thompson cross-examined Mrs. Huffaker regarding her failure to tell the police
about this important late-night meeting when they first interviewed her after the murders.
She admitted that she did not disclose the information for over a year and half. Counsel
also impeached her recollection of the date by using her grand jury testimony, in which
she had claimed that Scott purchased the gun at the “Shilo gun show.” When counsel
asked her if it would surprise her to learn that the gun show occurred in January instead
MEMORANDUM DECISION AND ORDER - 61

of March, 1992, she insisted that she was not with Scott when he bought the gun and that
she only later learned that he had bought it from a private individual. (State=s Lodging A9, pp. 1351-55.)
However, Huffaker was further impeached when, later in the trial, the State
produced a receipt from the seller—an Idaho State Police officer who had sold Scott a
rifle in 1992—and the receipt was dated February 7, some six weeks before the
Downards were killed. Petitioner’s counsel stipulated with the State to introduce the
receipt into evidence rather than present new testimony on the issue.
Petitioner contends that his counsel=s failure to offer the testimony of the Idaho
State Police officer, or to re-call the Huffakers and question them about the receipt, was
constitutionally ineffective. This claim presents a classic case of counsel making a
tactical decision in the midst of a contentious trial to present evidence in one form (a
stipulation) rather than another (though witness testimony). At his deposition, Thompson
testified that he believed that the receipt “helped us a lot” because “the timeframe when
[the officer] sold the gun to Mr. Huffaker did not match up with Beverly=s testimony.”
(Dkt. 63-3, p. 2.) Petitioner points to post-trial interviews with jurors indicating that they
had questioned the validity of the gun purchase receipt, and, therefore, had placed little
impeachment value on it. (Id.)
Ineffective assistance claims cannot be based on hindsight. Thompson’s belief was
reasonable at the time the decision was made, particularly because Thompson had already
demonstrated through his cross-examination that Huffaker had failed to come forward
with this story at an appropriate time, that she mysteriously recalled details long after the
MEMORANDUM DECISION AND ORDER - 62

fact, and that she was incorrect when she originally pinned the date to a gun show.
Petitioner’s argument that Thompson believed at the time of his deposition that it might
have been a mistake not to call the Idaho State Police officer (id. at 111), Thompson=s
after-the-fact regret, formed with the benefit of hindsight, does not prove that the original
decision was an objectively unreasonable one. In Harrington v. Richter, the Supreme
Court observed:
After an adverse verdict at trial even the most experienced counsel may
find it difficult to resist asking whether a different strategy might have been
better, and, in the course of that reflection, to magnify their own
responsibility for an unfavorable outcome. Strickland, however, calls for an
inquiry into the objective reasonableness of counsel's performance, not
counsel's subjective state of mind. 466 U.S., at 688, 104 S.Ct. 2052.
562 U.S. at 109-10.
In addition, Petitioner has not established prejudice. Even without the receipt or
any testimony about the receipt, defense counsel had already impeached Mrs. Huffaker
sufficiently to show that she may have been mistaken or confused about the date of the
purchase of the firearm. Further, Mrs. Huffaker also tied the date of this particular
Nevada trip to the anniversary of her mother’s death, a date she surely would have known
well. (State=s Lodging A-9, p. 1349.) Whether additional witness testimony about the gun
purchase would have added materially to the defense=s argument that Mrs. Huffaker was
wrong about the date of her encounter with Petitioner, or would have had no effect
whatsoever, is entirely speculative. While jurors stated in after-trial interviews that they
questioned the validity of the receipt and therefore disregarded that evidence, it is
unknown what they would have decided about the pinpointed date if they had to weigh
MEMORANDUM DECISION AND ORDER - 63

Mrs. Huffaker’s testimony about her mother’s death against the police officer’s testimony
about the gun purchase. Other considerations weighing in the balance were (1) the
testimonies of other witnesses who noted that Petitioner was upset after the murders
(bolstering Mrs. Downard’s story of the late-night meeting, regardless of whether she was
mistaken about the meeting having occurring near the gun purchase or her mother’s
death) and (2) Mrs. Huffaker’s other testimony about Petitioner’s statements regarding
Mrs. Downard (which lent credibility to her entire testimony, because she had treated
Petitioner like a son and had little to gain from testifying against him). Strickland
prejudice is “actual prejudice” and requires Petitioner to demonstrate a “reasonable
probability that, but for counsel's unprofessional errors, the result of the [trial] would
have been different.” 466 U.S. at 694. Stacked against the remainder of the evidence, live
testimony on the date of the gun purchase would not have been enough to amount to a
reasonable probability that the result of the trial would have been different.
6. Claim C(7): Petitioner’s Good Character
Petitioner also alleges that trial counsel failed to investigate and present evidence
of Petitioner’s good character, a claim that is procedurally defaulted. To support this
claim, Petitioner isolates a portion of Thompson=s deposition testimony in which he
admits that the defense should have presented additional evidence of Petitioner=s gentle
nature. (Dkt. 134, p. 38.) Petitioner contends that “had trial counsel done a thorough job
in presenting evidence of Petitioner=s good character, the jury would have seen a marked
contrast between Petitioner and Jeff Smith, and would have strengthened the defense=s
theory of the case.” (Id.)
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Petitioner does not describe the excluded evidence in his Second Amended
Petition or explain how it would have led to a reasonable probability of a different
outcome. In his deposition, Thompson testified that he could have put on more evidence
to show Petitioner’s “[in]ability really from an emotional standpoint to be able to plan
and commit a crime like this; we could have put on that expert testimony, not so much
character testimony.” (Dkt. 63-3, p. 10 (emphasis added).)
But, in fact, trial counsel did put on expert testimony that touched on that very
subject. The jury heard testimony from a number of witnesses that Petitioner had a few
simple pleasures in life, was childlike in some ways, and stuck closely to his daily
routine. Evidence was also presented that Jeff had a troubled past, and there was no
evidence before the jury that Petitioner had that same type of background. Though not
expressly “character” evidence, Dr. Marc Corgiat testified about Petitioner=s low I.Q. and
his limitations in cognitive functioning, which included Petitioner’s decreased ability to
formulate a complex plan or to conceal his involvement. In addition, counsel offered
numerous witnesses in the defense case-in-chief, and the choice of which witnesses to
call lies at the heart of defense strategy.
Viewing all of the evidence, the Court disagrees with Petitioner’s unsupported
assertion that prejudice resulted from not providing more character evidence about
Petitioner. The Court concludes that the case was much less about who had the
propensity to kill the Downards, and much more about who had a motive to do so.
Petitioner’s suggested vague testimony from his sister that he liked girls his own age
would not have countered Mrs. Huffaker’s detailed and damaging testimony about
MEMORANDUM DECISION AND ORDER - 65

Petitioner’s familiarity with Mrs. Huffaker’s bedroom, robe, and hands, and his favorable
comparisons between Mrs. Downard and Mrs. Huffaker.17 That testimony was essential
to showing motive; it came from a person whom Petitioner liked and trusted; and it had
nothing to do with “good character” or gentleness.
In addition, had Petitioner put on character witnesses, the State would have been
entitled to ask them about “events affecting the character trait or traits [Petitioner] has
placed in issue.” See U.S. v. Lewis, 482 F.2d 632 (1973) (giving an extensive overview of
what type of evidence can be used to challenge character evidence put on by a
defendant).
Based on all of the foregoing, the Court concludes that Thompson=s testimony 15
years post-trial expressing some doubt about whether the defense could have drawn a
sharper contrast between Petitioner and Jeff does not establish either deficient
performance or prejudice.
7. Claim C(8): Failure to Call the Smith Brothers’ Sister to Testify
Claim C(8) is that defense counsel failed to bring forward sufficient evidence of
Jeff’s past violent and threatening behavior. Particularly, Petitioner faults Thompson for
not introducing the testimony of Vicky Smith Sarver (now Rodriguez), the sister of
Petitioner and Jeff, to prove that Jeff “threatened to shoot their mother, that Jeff
threatened to rape [his sister], that Jeff was sexually inappropriate with [his sister], and
that Jeff had a temper.” (Dkt., p. 36.) Petitioner=s sister would have also testified that, in
17

Petitioner’s counsel described Mrs. Huffaker’s testimony as essential to the State’s case: “She was a big key to the
case in putting together—in putting the sexual motive and the time frames incriminating—the state was presenting
some stuff they felt [amounted to] pretty incriminating statements that Lanny made during the timeframe when the
Downards were killed. All that came through her.” (Dkt. 63-3, p. 1.)

MEMORANDUM DECISION AND ORDER - 66

contrast to Jeff, Petitioner was “easy going and did not have a temper.” (Id.)
Petitioner overlooks that his counsel did attempt to introduce extrinsic evidence of
Jeff=s prior threats and violence, but was prevented from doing so by the trial court. In
light of that ruling, Petitioner has failed to explain why it was unreasonable for his
counsel not to engage in the futile act of offering additional evidence in the same general
category. In addition, Petitioner’s counsel elicited testimony about several incidents of
Jeff’s unlawful behavior on cross-examination of Investigator Victor Rodriguez.
Finally, even if Petitioner’s counsel’s performance was deficient, Petitioner has
not established a reasonable probability that the trial court would have admitted this
evidence if offered, or that the result of the proceeding would have been different if
admitted, because the evidence had nothing to do with the Downards or the crime.
8. Claim C(9): Failure to Object to Prosecutor’s Shifting of the Burden of
Proof in Closing Argument
Yet another procedurally defaulted claim is Petitioner’s complaint that his counsel
failed to object when the prosecutor shifted the burden of proof during his closing
argument. Petitioner admits that the prosecutor gave a “correct recitation of the burden,”
but he nonetheless argues that “the State=s argument that the defense had not proven ‘lies,
deceit and deception,’ improperly placed the burden on the defendant.” (Dkt. 134, p. 40.)
He also contends that the prosecutor shifted the burden when he argued that the defense
had not challenged the State=s evidence that Petitioner was Afixated@ on Mrs. Downard.
(Id.)

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Prosecutors are permitted to argue reasonable inferences based on the record
before the jury. United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000).
“[C]omments intended to highlight the weaknesses of a defendant=s case do not shift the
burden of proof to the defendant where the prosecutor does not argue that a failure to
explain them adequately requires a guilty verdict and reiterates that the burden of proof is
on the government.” United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir. 1995)
(citations and internal quotations omitted).
The prosecutor clearly stated the correct burden, followed by what he asserted was
an unfulfilled claim made by defense counsel in his opening statement. He also
commented that Petitioner=s “fixation” on Mrs. Downard was not “challenged.” This did
not necessary mean that Petitioner had to do so with testimony of his own; he could have
provided other evidence on this point, but did not. It is permissible for a prosecutor to call
the jury=s attention to weaknesses in the defense case and to point out where the defense
failed to undermine the State=s allegations, see Vaandering, 50 F.3d at 702, and the
prosecutor=s comments in this case fell within that framework. Notably, the prosecutor
did not argue that Petitioner=s failure to testify should be taken as evidence of his guilt.
See United States v. Wasserteil, 641 F.2d 704, 709 (9th Cir. 1981) (holding that the test to
judge impermissible comment upon a defendant's assertion of his Fifth Amendment right
not to testify is whether the language used was manifestly intended or was of such a
character that the jury would naturally and necessarily take it to be a comment on the
failure to testify).

MEMORANDUM DECISION AND ORDER - 68

Because an objection on burden-shifting grounds would have lacked merit, it was
not deficient performance for counsel to stand silent. Moreover, there is no reasonable
probability that had an objection been made, and had the objection been sustained, the
result of the proceeding would have been different.
CLAIM D: CUMULATIVE EXPERT TESTIMONY
AND LATE DISCLOSURE OF OPINIONS
Petitioner alleges that his due process right to a fair trial was violated by the
cumulative nature of the state’s forensic experts and the late disclosure of expert
witnesses. Petitioner presented this claim to the Idaho appellate courts, citing federal due
process principles (State’s Lodging B-1, pp. 37-38), but the Idaho Court of Appeals
addressed it only as a state-law abuse-of-discretion claim. (State’s Lodging B-3, pp. 810.) Therefore, the Court concludes that the claim was properly presented but not
addressed by the Idaho appellate courts, entitling it to de novo review here.
Petitioner cites no case law in support of his claim. On direct appeal, he cited only
to broad due process principles, such as the “right to fair opportunity to defend against
the State’s accusations,” from Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and
the fact that “due process is flexible and calls for procedural protection as a particular
situation demands, from Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The Court
concludes that there is no governing precedent supporting a “cumulative experts” claim.
There is no allegation that Petitioner sought funding for additional experts and was
denied necessary experts by the trial court, such that he did not have a “fair opportunity”
to defend himself.
MEMORANDUM DECISION AND ORDER - 69

In addition, while the expert disclosures were made late in the disclosure time
period, they were still within the time period, and, thus Petitioner’s branding of them as
“late” is misleading. The expert report of Dr. Greenwade was disclosed to defendant on
January 10, 1996. The trial was originally scheduled for January 22, 1996. The trial was
moved to March 26, 1996, as a result of a change of judge. (See State’s Lodging B-1, pp.
30-31.) Between January and March, Petitioner’s attorneys and expert Richard Fox
reviewed “a copy of Greenwade’s reports, repeatedly talked to and even met with Mr.
Greenwade, and went over his reports and findings prior to trial.” (State’s Lodging B-2,
p. 13.) Therefore, Petitioner had adequate time before the actual trial date to determine a
strategy to rebut the expert’s testimony and seek additional funding, if needed. There is
no allegation that Petitioner sought and was denied an extension of time to procure
additional experts.
Because this entire claim is unsupported in fact and in law, it is subject to denial.
CLAIM E: INADMISSIBLE CHARACTER EVIDENCE
Petitioner asserts that the prosecution’s “theory that Petitioner was attracted to
older women with large breasts was inadmissible character evidence designed to
introduce a motive for the murder of the Downards.” (Dkt. 134, p. 42.) Petitioner alleges
that the prosecution never provided any nexus between Petitioner and Mrs. Downard.
In his state court action, Petitioner brought this claim under Idaho Rule of
Evidence 404(b), asserting that the evidence should not have been admitted because it
was another crime, wrong, or act that was more prejudicial than probative as to his
character. The Idaho Court of Appeals rejected that argument, recognizing that Idaho
MEMORANDUM DECISION AND ORDER - 70

Rule of Evidence 404(b) generally prevents the admission of previous acts to establish a
person’s character for the purpose of showing that the person acted in conformity with
that character in a given situation.
The evidence at issue is as follows:
Huffaker testified that Smith had repeatedly told her that he like
older, heavier, grandmotherly-looking women. After the Downards were
killed, Smith commented to Huffaker that she resembled Mrs. Downard,
comparing their hands, bodies, perfume and bedroom décor. Smith gave
Huffaker a bathrobe he said was like the one Mrs. Downard had. Smith also
admitted to Huffaker that he had been at the Downard’s home on the day
they were killed.
(State’s Lodging B-3, p. 12.) In addition, Mrs. Huffaker also testified that Petitioner
frequently bought her flowers and was very generous. (State’s Lodging A-9, p. 1356.)
On the date the Huffakers believed the Downards were killed, Scott Huffaker
testified that Petitioner had left a white rose under the left windshield wiper for his
mother, because Petitioner “always liked giving my mom things.” (State’s Lodging A-9,
p. 1374.) Scott also testified that Petitioner was teary-eyed and upset on that night. (Id., p.
1375.)
In considering the claim, the Court of Appeals concluded:
Huffaker’s testimony about Smith’s preference for older, heavy-set
women and his infatuation with Mrs. Downward was not in itself evidence
of a crime, wrong, or act of Smith to prove he acted in conformity
therewith. Rather, Huffaker’s testimony was relevant to establishing a
possible motive and intent on Smith’s part. We further hold that the district
court did not abuse its discretion in concluding that the probative value of
the questioned evidence was not substantially outweighed by the danger of
unfair prejudice.
(Id., pp. 13-14.)
MEMORANDUM DECISION AND ORDER - 71

Assuming for the sake of argument that Petitioner exhausted a federal due process
claim arising from Mrs. Huffaker’s testimony, this Court must determine whether the
Idaho Court of Appeals’ opinion is contrary to federal precedent. The federal courts have
recognized that “the erroneous admission of evidence that is relevant, but excessively
inflammatory, might rise to the level of a constitutional violation.” Lesko v. Owens, 881
F.2d 44, 51 (3d Cir. 1989) (collecting cases); see Romano v. Oklahoma, 512 U.S. 1, 12
(1994) (considering whether admission of evidence “so infected the trial with unfairness
as to make the resulting conviction a denial of due process”).
Common evidentiary standards across state and federal jurisdictions permit the
admission of evidence to show motive or intent. The Court agrees that Mrs. Huffaker’s
testimony was relevant to Petitioner’s motive and intent, and was not focused on other
bad acts or wrongs. The Court also agrees that the evidence was not of the type that
“appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to
punish, or otherwise may cause a jury to base its decision on something other than the
established propositions in the case.” Lesko, 881 F.2d at 55. An age gap or other
differences regarding attraction of one adult to another is not “excessively inflammatory.”
In addition, the very relevant testimony that Mrs. Huffaker—an older woman who was
someone Petitioner liked and trusted—began to notice Petitioner drawing comparisons
between her and Mrs. Downard is probative as to why Petitioner would have killed the
Downards.18 Petitioner has not shown that his right to due process and a fair trial were
18

With all due respect to Mrs. Huffaker, the Court finds the only description in the record of her physical
appearance is from the prosecutor during a pretrial hearing, who described Mrs. Huffaker, who was 64 years old, as
a “ fat old woman with large breasts.” (State’s Lodging A-5, p. 90.)

MEMORANDUM DECISION AND ORDER - 72

violated by admission of Mrs. Huffaker’s testimony. Therefore, habeas corpus relief is
not warranted.
CLAIM F: DUE PROCESS VIOLATION BY ADMISSION OF JAILHOUSE
INFORMANT JAMES SWOGGER’S TESTIMONY
Petitioner’ entire argument as to Claim F is as follows:
The testimony of jailhouse informant James Swogger was extremely
unreliable and its admission violated Petitioner’s due process right to a fair
trial. Swogger lied to Detective Rodriguez and lied to Prosecuting Attorney,
Tom Moss. (See Attachment KK, State’s Lodging B-1 (Appellant’s Brief,
State v. Lanny Smith, Idaho Supreme Court Docket No. 23515, pp.68-70)).
Admission of his testimony was highly prejudicial and Petitioner asserts
that, at a minimum, Swogger expected to obtain some benefit in exchange
for his testimony.
(Dkt. 134, p. 43.)
Petitioner presented this argument to the Idaho appellate courts, citing Lilly v.
Virginia, 119 S.Ct. 1887 (1999) (plurality decision addressing admissibility of
accomplices’ confessions that inculpate a criminal defendant), for the proposition that
evidence should not be admitted unless it is reliable. (State’s Lodging B-1, p. 69.)
Petitioner further argued that the Idaho Court of Appeals “should establish a new rule in
assessing the admissibility of this type of testimony.” Petitioner suggested a seven-factor
analysis for assessing reliability. (Id.) Nevertheless, the Idaho Court of Appeals stated
that this issue was presented “without citation to any authority,” and, thus, would not be
addressed.
Because Petitioner presented some authority, seeking a broad extension of the rule
in Lilly, and the Idaho appellate courts did not acknowledge Petitioner’s authority, the
Court reviews the claim de novo. On habeas review, Petitioner has cited no authority.
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This Court concludes that Lilly, cited in the state appellate record below, does not support
Petitioner’s claim. Swogger recanted and then returned to his testimony, and cited as the
reason for his earlier recantation real and threatened retaliation from other inmates. The
trial court ruled that it could not find Swogger “inherently incredible based upon the
evidence supplied”—which was testimony from Swogger, another inmate, and a jail
deputy. (State’s Lodging A-4, p. 558.) “[W]hether Mr. Swogger is telling the truth or
not” would be left to the jury to decide, the Court ruled. (Id.)
Because there is no precedent showing that such a circumstance amounts to a
constitutional violation rather than a credibility question for the jury, Petitioner’s claim
must be denied. “New rules” of procedure cannot be created on federal habeas corpus
review. Teague v. Lane, 489 U.S. 288 1989).
CLAIM G: PROSECUTORIAL MISCONDUCT BY VOUCHING FOR THE
STATE’S WITNESSES DURING CLOSING ARGUMENT
Petitioner alleges that the prosecutor improperly vouched for witnesses, misstated
facts as to why Greenwade was hired, stated evidence not in the record, and
misrepresented the evidence by telling the jury that Petitioner had a “fixation” on Mrs.
Downard. (See Attachment KK, State’s Lodging B-1 (Appellant’s Brief, State v. Lanny
Smith, Idaho Supreme Court Docket No. 23515, pp.70-72)) This claim was presented to
the Idaho Supreme Court on direct appeal. Petitioner argues that, to the extent that this
claim was not “federalized” during the state court review process, direct appeal counsel is
to blame. The court concludes that either under AEDPA deference or de novo review, the
claim fails.
MEMORANDUM DECISION AND ORDER - 74

1. Standard of Law
A prosecutor in a criminal case has an obligation to avoid peppering his opening
and closing argument with “assertions of personal knowledge” or “improper insinuations
and assertions calculated to mislead the jury.” Berger v. United States, 295 U.S. 78, 88
(1935)). “Improper vouching typically occurs in two situations: (1) the prosecutor places
the prestige of the government behind a witness by expressing his or her personal belief
in the veracity of the witness, or (2) the prosecutor indicates that information not
presented to the jury supports the witness's testimony.” United States v. Hermanek, 289
F.3d 1076, 1098 (9th Cir. 2002).
2. Discussion
Petitioner argues that the prosecutor improperly vouched for Jeff Smith, Beverly
Huffaker, Victor Rodriguez, Donna Shepherdson, and Eric Greenwade. Petitioner has
presented this argument in wholesale fashion, without pointing to specific places in the
closing argument where the “vouching” occurred. Upon its review of the trial transcript,
this Court notes the prosecutor used phrases such as: (1) “Believe me, …”; (2) “I’m not
going to say it was a lie. It was a mistake. But it certainly wasn’t perjury”; (3) “If we
were out here trying to deceive you and trying to hide evidence and trying to manufacture
evidence, why would we have brought that receipt in and given it to you... That was
brought to you by us;” and that Mr. Greenwade had “impeccable credentials.” (State’s
Lodgings B-1, A-14.) However, both the prosecutor and the judge admonished the jury
that the lawyers’ argument was not testimony or evidence. (State’s Lodging A-14, pp.
2883, 2885.) In addition, the prosecutor also stated:
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[Defense] [c]ounsel has made a challenge at the end of his argument,
Mr. Thompson. And that is make the State stick to the facts. And I want
you to hold me to that. And if I don’t stick to the facts, you disregard
anything I say if you don’t’ think it’s been a proven fact in this case.
(State’s Lodging A-14, p. 2873.)
The Court has read the entire closing argument and does not find anything so
inappropriate that it should have been stricken. The prosecutor’s comments are part of an
argument and a manner of speaking, rather than an attempt to persuade the jury to take
the prosecutor’s word for facts or credibility.
Petitioner also argues that the prosecutor misrepresented the evidence by telling
the jury that Petitioner had a “fixation” on Mrs. Downard. A “fixation” is at the least a
preoccupation, and at the most, an obsession. Mrs. Huffaker provided sufficient
testimonial evidence that Petitioner was preoccupied by Mrs. Downard.
Petitioner has not shown that the prosecutor violated Petitioner’s due process
rights by the manner in which he presented his argument. No relief is warranted on any
aspect of this claim.
CLAIM H: INEFFECTIVE ASSISTANCE OF DIRECT APPEAL
Petitioner alleges that direct appeal counsel was ineffective for failing to raise
issues that (1) petitioner was deprived of his right to present a defense in excluding
evidence of Jeff’s threatening and violent history; and (2) the prosecuting attorney
improperly shifted the burden of proof in his closing argument.

MEMORANDUM DECISION AND ORDER - 76

Because the underlying claims that Petitioner believes should have been asserted
on appeal are without merit, as discussed above, the ineffective assistance of appellate
counsel claims are also without merit.
CLAIM J: BRADY CHAIN OF CUSTODY OF EVIDENCE
With disclosure of the Rodriguez file, Petitioner’s habeas counsel saw, for the first
time, chain of custody reports for the gun, bullets, shoes, and other items that referred to
breaks in the chain of custody. The items had been passed between various experts in
different states, including Petitioner’s own expert, as the trial transcript reflects.
Petitioner alleges that the prosecutor failed to disclose this information to defense counsel
in violation of Brady v. Maryland, 373 U.S. 83 (1963). In typical overbroad and
undersupported fashion, Petitioner asserts: “Had trial counsel been aware of the issues,
Smith would not have been convicted, especially given the scarce physical evidence
purportedly connecting him to the homicides.” (Dkt. 134.)
None of the new Brady claims have ever been presented to the state courts. While
it is unclear whether Petitioner has exhausted these claims in state court, it is clear that
Petitioner’s claims are without merit, and, thus, the Court will address them without
regard to exhaustion. See 28 U.S.C. § 2254(b)(2).
3. Standard of Law
While defendants have no general constitutional right to discovery in criminal
proceedings, Weatherford v. Bursey, 429 U.S. 545, 559 (1977), due process requires that
the prosecution disclose evidence favorable to an accused upon request, when such
evidence is material to guilt or punishment, including impeachment material. Brady v.
MEMORANDUM DECISION AND ORDER - 77

Maryland, 373 U.S. at 87; Giglio v. U.S., 405 U.S. 150 (1972). “Material” evidence is
any evidence for which there is a reasonable probability that its disclosure would have
changed the outcome of the proceeding, and a “reasonable probability” means one
sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S.
667, 682 (1985). There are three components of a Brady violation: (1) the evidence at
issue must be favorable to the accused; (2) the evidence must have been suppressed by
the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v.
Greene, 527 U.S. 263, 281–82 (1999).
As to chain of custody issues at trial, the prosecution must introduce sufficient
proof so that a reasonable juror could find that the evidence is in substantially the same
condition as when it was taken into custody. United States v. Harrington, 923 F.2d 1371
(9th Cir.), cert. denied, 502 U.S. 854 (1991). A defect in the chain of custody goes to the
weight, not the admissibility, of the evidence introduced. United States v. Robinson, 967
F.2d 287, 292 (9th Cir.1992), abrogated in part on other grounds as recognized in
Ortega–Mendez v. Gonzales, 450 F.3d 1010, 1020 (9th Cir. 2006). “Physical evidence is
admissible when the possibility of misidentification or alteration is eliminated not
absolutely, but as a matter of reasonable probability.” United States v. Combs, 369 F.3d
925, 938 (6th Cir. 2004) citation and punctuation omitted).
4. Discussion
Chain of custody evidence is important when it is unclear whether someone has
tampered with the evidence since it was taken into custody, or whether the evidence a
party is attempting to present at trial is not the same evidence that was retrieved from the
MEMORANDUM DECISION AND ORDER - 78

crime scene. In this case, expert witness testimony was necessary to give meaning to the
evidence. Petitioner has not alleged that the evidence was altered before or after experts
reviewed it. The fact that the experts all agreed on the inculpatory nature of the ballistics
and shoe print evidence make it even more difficult for Petitioner to show that challenges
to the chain of custody would have been given substantial weight at trial.
Respondent persuasively argues that the record does not definitively show that
Petitioner’s counsel did not receive the chain of custody evidence. Petitioner’s counsel
was an experienced criminal attorney who surely knew (1) that police were required to
keep a chain-of-custody report, (2) that he did not have a copy of it (if he did not), (3)
that the evidence had been passed between several experts in several states; and (4) that
he could get a copy of the chain-of-custody report from the prosecutor. Petitioner’s
habeas corpus counsel has not obtained an affidavit from trial counsel stating that the
chain-of-custody record had not been disclosed. However, for the sake of argument, the
Court assumes that habeas counsel believes trial counsel did not receive the reports
because she did not see them herself in the case file, and that trial counsel did not receive
them.
The Court further agrees with Respondent that no prejudice resulted from any
nondisclosure of the reports. Thompson knew how many people had handled and tested
the evidence, and he very well could have formulated a strategy around breaks in the
chain of custody by investigating whether every exchange of the evidence between each
expert had been documented. He could have demanded that the State bring all of their
custodians to trial for foundation purposes. However, he did not, because such a strategy
MEMORANDUM DECISION AND ORDER - 79

would not have led to anything except an even lengthier trial and an annoyed jury. Had
Thompson challenged the chain of custody, he would have had to assert that someone
altered or replaced the real evidence before it reached the experts, and he would have had
to make that argument in the face of the State’s experts identifying the evidence (which
they did at trial in preface to their testimonies). There is nothing in the record showing
that a chain-of-custody defense would have been successful.
Turning to the trial transcript, the Court concludes that the prosecution laid
adequate foundation for the evidence that was admitted, further diminishing the value of
the allegedly withheld chain-of-custody reports. Officer Greg Black testified about the
manner in which the bullet casings were retrieved from the Downards’ house. First,
investigators photographed the casings next to small yellow identifying placards. Next,
Black marked an evidence envelope, using with the same yellow placards from the
photos. He used the lip of the envelope to scoot the casings into the envelope. At trial,
Black noted the writing on the exterior of the envelopes showed that the exhibits had
been sent back and forth to different labs and experts. Thompson had no objections.
(State’s Lodging A-8, pp. 945-950.)
Officer Black further testified about attending the autopsy, and how he had seen
the bullet fragments retrieved from the victims’ bodies, and how he placed those in a
plastic container and then in an evidence envelope, and had marked them accordingly.
(Id., pp. 955-56.)
Officer Black identified the property record for the tennis shoes. He noted that he
had marked the date and initials on both of the shoes he retrieved from Petitioner’s room.
MEMORANDUM DECISION AND ORDER - 80

He identified the shoes marked as Exhibits 30-A and 30-B as the same shoes he had
retrieved. The shoes were admitted without objection. (Id., pp. 972-73.) Officer Albert
Thompson similarly identified the shoes he retrieved from Jeff’s home by showing his
initials, “AT,” on the inside tag of each shoe. He recognized the shoes taken from Jeff
because one of the shoes “still has some of the—well, it looks like mortar and mud to me.
Still embedded in the bottom of the shoe.” Thompson identified the shoes as being size
92. (State’s Lodging A-8, p. 1012.)
Officer Paul Wilde testified that, when they received a report on the casings, it
showed a number of possible weapons that may have fired the casings. Several guns
listed were Remington 500 series rifles, and so he thought it was necessary to exclude the
rifle Lynn Smith had showed them. (State’s Lodging A-8, p. 1094.) Officer Wilde
identified the Smith rifle at trial by its name, model, model number, and serial number,
which were recorded in the reports and receipt to Lynn Smith when the rifle was taken.
(Id., p. 1095-97.)
At trial, there was no controversy over which shoes were taken from Jeff and
which shoes were taken from Lanny. There was no question that the Smiths owned size
82 and 92 shoes, and that Lanny wore smaller shoes than Jeff. A size 92 shoe box was
taken from Jeff, and Jeff’s size 92 shoes had about one inch of mud caked on them from
all of the yard work he had just completed, while Lanny’s shoes had been cleaned before
they were taken into custody.
Petitioner makes much of the fact that a police report mistakenly showed that the
82 sized shoes were retrieved from Jeff, but that fact was known at trial, and the defense
MEMORANDUM DECISION AND ORDER - 81

team did nothing about it at trial. (Dkt. 134, p. 53.) That is because the rest of the
evidence showed that Jeff’s shoes were 92 and Petitioner’s were 82, and the officer
who retrieved each pair of shoes had his own initials in the shoes, and so there was really
nothing to contest.
Petitioner also boldly asserts that the newly-disclosed files revealed for the first
time that a latent fingerprint of Jeff Smith was found on the Bushnell scope of the
Remington Fieldmaster. Petitioner asserts that trial counsel did not have this information.
(See Dkt. 134-9, Attachment MMM.) Robert Kerchusky, supervisor of the Idaho
Department of Law Enforcement “latent fingerprint section,” is the author of the report,
as noted on the first page. If counsel did not receive the second page, then they should
have requested it, because page one says, “positive – see back.” Surely, anyone reading
the report—and especially a criminal defense attorney—would want to know what the
positive identification on the back of the report showed and would have requested it from
Kerchusky. In fact, page two of the report states: “On – Martin Ols – 4 identifications
made from rifle. One latent print of value remaining on Bushnell scope.” (Dkt. 134-9, p.
9.)
At trial, Kerchusky testified that the four regular and one latent prints (five total)
matched Expert Martin Ols’ prints. (State’s Lodging A-10, pp. 1738-39.) Detective
Victor Rodriguez testified to the same. (Dkt. 134-9, pp. 8-9.) Petitioner’s out-of-context
interpretation of the report is that Kerchusky found a latent print on the scope and did not
bother to try to match it to Ols or Jeff (why that would be the case when his job was to
identify all of the prints is illogical). To the extent that it is necessary for the report to be
MEMORANDUM DECISION AND ORDER - 82

interpreted by the person who prepared it—Kerchusky—he did so at trial, and dispelled
Petitioner’s theory. Petitioner has no real argument that he could have brought the report
into court and cross-examined Kerchusky into saying that the report meant something
other than what he intended it to say. This argument is close to frivolous.
In conclusion, Petitioner has not shown that his defense counsel did not have the
chain-of-custody reports kept in this case. Neither has Petitioner shown materiality,
defined as evidence sufficient to undermine confidence in the outcome of the trial.
Neither has Petitioner shown that prejudice resulted from not having or using the chainof-custody reports. Accordingly, Petitioner’s Brady claim fails.
CLAIM K: BRADY DISCLOSURE OF PRIOR BAD ACTS OF JEFF SMITH
Detective Victor Rodriguez previously did not disclose that he kept in his
possession a separate file on Jeff Smith. Petitioner now argues: (1) the reports would
have impeached Rodriguez when he testified that Jeff’s background did not include a
significant amount of violence; and (2) the reports would have impeached Jeff Smith
regarding proof of his violent nature and past threats to kill people, especially with a .22.
(Dkt. 134, p. 61.)
Petitioner overvalues the file as an impeachment tool for Victor Rodriguez’s
testimony. Petitioner argues that the prosecution did not reveal that, in October of 1993,
during a time period when Jeff Smith had a statutory rape charge pending, Detective
Rodriguez wrote to the prosecuting attorney to notify him that Jeff Smith had “displaced
acts of violence on his two ex-wives, even to the point of holding a gun to their heads.”
(Second Amended Petition, p. 60.) In the letter, Rodriguez recommended that Jeff be
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placed on a sex offender caseload if he received probation. (Id.) Petitioner argues that this
information contradicts Rodriguez’s trial testimony:
Q.

Officer, Rodriguez, you’ve indicated that Jeff Smith was not
considered by you to be a suspect in July and August of
1993. You were aware, were you not, of Jeff Smith’s
background?

A.

Yes.

Q.

And that background included a significant amount of
violence?

A.
I’m not aware of a significant amount of violence, no.
***
Q.
You were not aware of Jeff Smith threatening his ex-wife,
Julie Woodall, with a .22?
A.

I’m aware of that situation. But not with a .22, I don’t believe.

***
Q.
You did tell the grand jury, did you not, that Jeff has a
background of wife abuse and physical abuse?
A.

I recall I did.

***
Q.

Did you consider Jeff Smith to be dangerous in June of ’94?

A.

I don’t believe so.

(State’s Lodging A-10, p. 1675.)
Rodriguez certainly may have been attempting to minimize Jeff’s history of
violent and threatening behavior. However, the problematic feature of Petitioner’s new
argument is that his counsel would have been haggling over subtleties in word choice
with Rodriguez. For example, what constitutes a “significant amount of violence” and
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whether a person is “dangerous” is a matter of context and opinion. When asked about
Jeff’s specific instances of violence on cross-examination, Rodriguez acknowledged the
instances, and he may have been correct that Woodall was not threatened with a .22—but
instead with a shotgun. (See Woodall Declaration, Dkt. 134-3, p. 17 (describing the gun
twice as a “shotgun”). Whether Petitioner would have gotten any mileage out of this line
of questioning is entirely speculative. Therefore, even though the file was suppressed, no
prejudice resulted.
Petitioner’s second argument is that the Victor Rodriguez file could have been
used to impeach Jeff. However, the trial court had ruled that counsel could ask about
incidents of violence, but not introduce extrinsic evidence to impeach Jeff. Therefore,
Petitioner has not shown that the incidents of violence in the file would have been
admitted, had they been known.
However, backing up to the issue of suppression regarding impeachment of Jeff, it
is important to note that the Rodriguez file contained references to public police reports
on Jeff Smith, and Petitioner had equal access to Jeff, Jeff’s ex-wives, and other victims
listed in the police reports—information Petitioner obviously possessed. Petitioner’s
counsel knew about Jeff Smith’s domestic violence against his wives, because he
questioned Victor Rodriguez and Officer Stimpson in detail about the incidents. (State’s
Lodging A-8, pp. 1082-87.)
In summary, Victor Rodriguez was remiss in not providing his personal file on
Jeff Smith to the defense team. However, Petitioner’s Brady claim fails because the
information in the file was not material—which is defined as evidence sufficient to
MEMORANDUM DECISION AND ORDER - 85

undermine confidence in the outcome of the trial—and no prejudice ensued. Petitioner
argues that no reasonable juror would have convicted Petitioner of murdering the
Downards if the Victor Rodriguez file detailing the additional violent behavior of Jeff
Smith, or Rodriguez’s knowledge of it, had been disclosed. The Court disagrees. The trial
court limited the admissibility of the type and content of Jeff’s prior bad acts. In addition,
more discussion of Jeff’s bad acts still would do nothing to disturb the evidence showing
that Petitioner had motive, opportunity, and a weapon, and that he left his shoe print at
the crime scene.
CLAIM L: BRADY ALTERNATE SUSPECT INFORMATION
Petitioner alleges that the newly-disclosed investigatory file shows that the police
had alternate suspects in mind that were never disclosed to Petitioner’s counsel. While
this meets the first prong of Brady, there is no prejudice in light of the substantial
evidence that Petitioner was the perpetrator.
Petitioner argues that the file shows police knew there was an “open, bitter hatred”
between Mr. Downard and his boss, and that his boss eventually forced him into early
retirement. However, there is no evidence suggesting that Mr. Downard’s boss killed Mr.
and Mrs. Downard. In fact, this type of evidence would seem to cut the other way—Mr.
Downard was the one forced to leave the company, and thus would have more motive to
harm his boss, than vice versa. Petitioner has no evidence whatsoever that this was a
viable option upon which to build a defense.
In addition, police did not disclose that there was a general report of a semiautomatic .22 pistol that was stolen from an Idaho Falls residence between February and
MEMORANDUM DECISION AND ORDER - 86

March 1992. There is absolutely no other evidence showing that another person with a
gun stolen from an Idaho Falls residence shot the Downards, based on evidence
surrounding the scene of the crime. In addition, the evidence at trial showed that the
murder weapon was a rifle, not a semi-automatic pistol.
At trial, the police investigators explained how they began the murder
investigation by identifying all of the people who had had recent contact with the
Downards. They realized the shoe prints were from FootJoys and that Jeff had been at the
Downards’ home, which quickly led them to suspect Jeff, who owned a pair of FootJoys.
Early on, Lynn Smith thwarted the investigation by responding to investigators’ questions
about whether the .22 had been used recently by saying that it had not been used in some
time, and that he had the key to the gun cabinet and had been away in Nevada during the
time period in question. As soon as it became known at Jeff’s preliminary hearing that
Lynn had given Petitioner the gun, the investigation shifted to Petitioner. Mrs. Huffaker
provided the critical testimony that Petitioner had confessed to her that he had been to the
Downards on the day of the murder.
The Court finds that the record contains a large amount of evidence that the
murderer was one of the Smith brothers, rather than Mr. Downard’s boss or an unknown
person wielding the stolen pistol. While the Court does not condone the withholding of
other potential perpetrator evidence by the prosecution, there is nothing in the record that
shows that either of these two leads would have been fruitful, and, in fact, they are quite
far-fetched. Cf. Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000) (holding that
undisclosed evidence of several leads in the sheriff's files was not material because
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defendant's theory that they might have helped his case was speculative and he did not
show how the evidence might have altered the outcome). Therefore, no relief is
warranted on this claim for lack of materiality and prejudice.
CLAIM M: BRADY FAILURES RE:
JAILHOUSE INFORMANT JAMES SWOGGER.
James Swogger, Jr., a jailhouse informant, testified at trial that Petitioner
confessed to killing the Downards with a .22 and raping Mrs. Downard after killing her.
He claimed that he had not received a deal on any of his criminal cases, but did receive a
promise to be moved to another institution for safety. (State=s Lodging A-10, pp. 155081.) He acknowledged at trial that he understood the penalty for perjury in a capital case
was potentially death. (Id. at 1563.)
However, in a 2011 unsworn telephone interview initiated by Petitioner’s habeas
counsel Elisa Massoth, Swogger recanted his trial testimony, some 15 years after the
main event. (Exhibit 134-11.) Petitioner now alleges that the prosecution violated Brady
by failing to disclose that Swogger (1) initiated contact with the police, (2) was
threatened with prison if he failed to testify, and (3) obtained benefits in exchange for his
testimony. In that interview, Swogger and Massoth discussed whether Swogger was
willing to sign a declaration immediately. Swogger said he would sign it, but, in the five
years since that interview, he has not done so. Because this claim is based on unsworn,
speculative information provided by a witness who is on his second recantation many
years after the trial, the Court concludes that no relief is warranted. As the Court will
explain, Petitioner has not met any of the Brady factors in his proffer of Swogger’s
MEMORANDUM DECISION AND ORDER - 88

second recantation.
Recantations are viewed by the courts with suspicion, see, e.g., Olson v. United
States, 989 F.2d 229, 231 (7th Cir. 1993), and this one is no exception. It is far from clear
when Swogger has lied in this case and when he has told the truth. The record reflects
that Swogger’s claims have evolved and shifted throughout the history of this case. His
newer recantation falls in line with that tradition. Swogger now asserts that Lanny never
told Swogger that he killed the Downards or raped Mrs. Downard.
Swogger’s initial recantation occurred before trial. On May 14, 1995, Swogger
wrote a letter to Victor Rodriguez stating: “Please do not continue to harass me. If I am
forced to take the stand, you will regret the words out of my mouth because I will have to
tell the truth which is I do not know a thing. So you and everyone else should leave me
the hell alone.” (State’s Lodging A-10, p. 1569-70.)
At a pretrial hearing on a motion in limine to block his testimony, Swogger made
another about-face and claimed that he was lying in the letter when he said he did not
“know a thing.” (State=s Lodging A-4, p. 395.) At that same hearing, he said, for the first
time, that Petitioner had told him that he raped Mrs. Downard after she was dead. At trial,
Swogger testified that Petitioner had confessed to killing the Downards with a .22 caliber
gun and that he raped Mrs. Downard after she was dead. Defense counsel then crossexamined him, exposing that he had testified incorrectly at the pretrial hearing about
whether he had a pending charge for child molestation. (State=s Lodging A-10, p. 1567.)
At trial, Swogger admitted that he was looking for a deal on his criminal charges
when he first spoke with investigators. (Id. at 1568.) Defense counsel also brought up the
MEMORANDUM DECISION AND ORDER - 89

Swogger letter to Rodriguez that threatened, “if forced to take the stand, I will have to tell
the truth which is that I do not know a thing.” (Id. at 1569-70.) His position at trial was
that he held back, as a “trump card,” the additional detail that Petitioner said he had raped
Mrs. Downard. (Id. at 1570.)
Defense counsel also produced a second letter Swogger had written to a trial judge
in his criminal case, asking for a reduction in sentencing, with the following threat:
If you are not willing to agree to these terms, then you should
seriously reconsider calling me for my testimony. And don’t bother sending
a transport for me to come before the trial. Because unless I have one of the
terms in writing by the proper authorities, I will not come no matter what
you do to me or how much time you give me.”
(Id. at 1574.)
The defense also presented another inmate who testified that Swogger=s reputation
for honesty was not good. (State=s Lodging A-13, pp. 2546-60.)
Petitioner points to a series of discrepancies between Swogger’s prior and current
versions of events to support his claim that, 20 years ago, the prosecutor should have
disclosed the current, rather than the past, allegations of Swogger. First, during his in
camera testimony for the motion in limine and trial testimony, Swogger testified that he
did not even know who Victor Rodriguez was until Rodriguez called him in Burley and
asked to meet with him. (State’s Lodging A-4, p. 387; State=s Lodging A-10 pp. 155960.) In the 2011 interview with Petitioner’s counsel, Swogger said he wrote directly to
Detective Rodriguez to offer to testify.
Petitioner faults Rodriguez for not disclosing that Swogger contacted him first,
rather than Rodriguez contacting him. However, there is no corroborating evidence that a
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“first contact” letter ever existed. In the interview, Swogger said he didn’t recall the gist
of the first letter to Rodriguez, and Swogger was not even sure “how it all came about.”
(Dkt. 134-11, pp. 30-31.) This “new’ information is vague and speculative, was prompted
by a leading question in the interview, is unsworn, and seems to contradict Swogger’s
prior testimony.
Second, in the 2011 interview, Swogger said the prosecutor and Rodriguez
threatened Swogger that he would be prosecuted for the same crime as Petitioner and
would face a death sentence if he did not testify. Swogger testified slightly differently at
trial—that he had been advised on a number of occasions that the penalty for perjury in a
capital case could be up to life imprisonment and even execution. (State’s Lodging A-10,
p. 1563.) Thus, beyond the fact that the new statement is unsworn, uncorroborated, and
contrary to his sworn testimony, in either instance Swogger believed there was a potential
death sentence available for him if he either refused to testify or testified untruthfully.
The practical effect on Swogger (a death sentence) is the same under either scenario.
Finally, Petitioner asserts that the prosecutor should have disclosed that Swogger
obtained benefits in exchange for his testimony. At trial, Swogger testified that, when
Rodriguez and the prosecutor met Swogger in person, he attempted to make a deal in
exchange of his testimony, but the prosecutor refused, other than to agree to recommend
a different institutional placement for his safety. (State’s Lodging A-10, pp. 437-440.) In
his 2011 interview, Swogger now says that he received a benefit of being transferred to a
Nevada prison where he was held in general population and not in isolation. This is not
substantially different from his testimony at trial. He was transferred to a different
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institution. There is nothing in the record showing that his placement in general
population, rather than isolation, was bestowed upon him as a benefit for testifying. It is
equally possible that, in Nevada, Swogger was not subject to being threatened or harmed
by other inmates, as in Idaho, where, he testified, he feared retaliation from inmates who
knew he had testified against another inmate. In any event, benefits received after one
testifies at trial that were not promised before trial do not support a Brady claim, because
the witness had no sure expectation of receiving a benefit for testifying.
Reviewing the record in its entirety, the Court concludes that Swogger’s
questionable motives for testifying were fully explored, and he was revealed to be largely
an untrustworthy opportunist seeking the best deal that he could get in exchange for his
information. His late-disclosed information about the rape of Mrs. Downard was strongly
contradicted by the fact that Mrs. Downard was found fully clothed and the rape kits were
negative for semen. In his closing argument, the prosecutor explicitly acknowledged
some of Swogger’s credibility problems, noting that “whether he is a slimy scum bag or
whatever you want to call him for ratting on a jail mate, he nevertheless told you what he
heard . . . [a]nd you can give it whatever weight you want to.” (State=s Lodging A-14, p.
2794.)
Regardless of how the initial contact occurred, Swogger admitted that he asked for
a deal the first time that he met the investigators in person. He was questioned at trial
about other letters in which he exhibited his tendency to seek benefits in exchange for his
testimony. The State=s recommendation to transfer Swogger for his safety and his
understanding that the penalty for perjury was the death penalty were not secrets, as the
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jury heard testimony about those things. Petitioner has failed to explain how, assuming
the “new” information is true, there is a reasonable probability sufficient to undermine
confidence in the outcome of the trial.
The Court concludes that Petitioner has not shown that the prosecution violated
Brady by not “disclosing” the information Swogger now claims is the truth. The new
recantation is unsworn, uncorroborated, and contrary to his sworn testimony. Therefore,
there is no admissible evidence showing that the recantation was suppressed or that it is
material. Further, no prejudice occurred, because the jury heard substantially the same
information at trial and Swogger was a witness wholly without credibility, as the
prosecutor acknowledged in closing.
CLAIM I: ACTUAL INNOCENCE
“Actual innocence” has been recognized as a “gateway through which a habeas
petitioner [can] pass to have his otherwise barred constitutional claim considered on the
merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993). Neither the United States Supreme
Court nor the Ninth Circuit has conclusively determined whether a freestanding actual
innocence claim is cognizable in a federal habeas corpus proceeding. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence.”); Herrera,
506 U.S. at 417 (“We may assume, for the sake of argument in deciding this case, that in
a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial
would render the execution of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a claim.”); Jones v. Taylor, 763
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F.3d 1242, 1246 (9th Cir. 2014) (“We have not resolved whether a freestanding actual
innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital
context, although we have assumed that such a claim is viable.”).
Even assuming that a freestanding claim of actual innocence is cognizable in a
noncapital habeas case such as this one, the Court concludes—on de novo review—that
Petitioner has not shown that he is actually innocent. As a result, his freestanding claim is
without merit, and this particular avenue for excusing procedural default or the
untimeliness of Petitioner’s late claims is foreclosed.
1. Standard of Law
To show actual innocence, a petitioner must support his allegations of
constitutional error with new reliable evidence that was not presented at trial, Schlup v.
Delo, 513 U.S. 298 (1995). For example, types of evidence “which may establish factual
innocence include credible declarations of guilt by another, see Sawyer v. Whitley, 505
U.S. 333, 340 (1992), trustworthy eyewitness accounts, see Schlup, 513 U.S. at 331, and
exculpatory scientific evidence.” Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996).
Actual innocence must be premised on “factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. at 615.
This exception is to be applied only in the “extraordinary” or “extremely rare”
case. House v. Bell, 547 U.S. 518, 538 (2006); Schlup, 513 U.S. at 320-21. In Larsen v.
Soto, the United States Court of Appeals for the Ninth Circuit summarized the difference
between those cases that meet the high actual innocence standard, and those that do not:

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The Schlup standard “is demanding,” Perkins, 133 S.Ct. at 1936, and
precedents holding that a habeas petitioner satisfied its strictures have
typically involved dramatic new evidence of innocence. In House, for
instance, DNA evidence established that semen found on a murder victim
came from the victim’s husband and not from House, see 547 U.S. at 540–
41, 126 S.Ct. 2064, and there was evidence that the husband had a history
of violence toward his wife, raising an inference that he “could have been
the murderer,” id. at 548, 126 S.Ct. 2064. In Carriger, the prosecution's
chief trial witness had confessed in open court that he himself (and not
Carriger) had committed the murder for which Carriger had been convicted.
See 132 F.3d at 471–72. In contrast, we have denied access to the Schlup
gateway where a petitioner’s evidence of innocence was merely cumulative
or speculative or was insufficient to overcome otherwise convincing proof
of guilt. See, e.g., Lee v. Lampert, 653 F.3d 929, 943–46 (9th Cir. 2011);
Sistrunk v. Armenakis, 292 F.3d 669, 675–77 (9th Cir. 2002). Thus, to
satisfy Schlup, the petitioner's new evidence must convincingly undermine
the State’s case. However, definitive, affirmative proof of innocence is not
strictly required. As we explained in Carriger, a Schlup claim “is
procedural, not substantive”: a petitioner’s new evidence must be sufficient
to undermine a court’s confidence in his conviction, but not to erase any
possibility of guilt. 132 F.3d at 478.
742 F.3d 1083, 1095-96 (9th Cir. 2013).
The evidence supporting an actual innocence claim must be “newly presented”
evidence of actual innocence, meaning that “it was not introduced to the jury at trial.”
However, the evidence need not be “newly discovered,” meaning that it could have been
available to the defendant during his trial. Griffin v. Johnson, 350 F.3d 956, 962–63 (9th
Cir. 2003).
Because of the importance of the evaluation of actual innocence, a district court
“is not bound by the rules of admissibility that would govern at trial” and can consider
evidence that is “claimed to have been wrongly excluded” or which “became available
only after the trial.” Schlup, 513 U.S. at 328. Although inadmissible evidence may be
considered, its reliability still must be evaluated by the court. Similarly, the district court
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may evaluate the credibility of witnesses who testified at trial in light of the newly
discovered evidence. 513 U.S. at 330–32. A petitioner meets the threshold requirement if
he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt. 513 U.S. at
327.
2. Discussion
Nothing in the Victor Rodriguez file shows that Petitioner is factually innocent.
The record was already replete with evidence that Jeff has threatened violence and acted
out in violence against his ex-wives. Nothing in the Rodriguez file links him to the
Downard crimes. Random propensity evidence of an alternate perpetrator does not show
that Petitioner is innocent.
Reviewing the other evidence in the record, the Court concludes that little, if
anything, points to the actual innocence of Petitioner. While Petitioner broadly attacks the
unanimous adverse opinions from the experts on both sides, he has not come forward
with any well-reasoned legal argument sufficiently undermining those opinions in the 20
years since trial. Nor has Petitioner provided any facts showing that new experts would
not reach the same opinions.
Beyond the unanimous forensics evidence, there is substantial testimonial
evidence from people close to Petitioner that points to him as the perpetrator. It was clear
from the record that Mrs. Huffaker knew Petitioner extremely well and treated him like a
son. Petitioner has not shown that Mrs. Huffaker had any kind of improper motive for
testifying about Petitioner the way that she did; in fact, it was clear that, early in the
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investigation, she wanted to protect Petitioner. Later on, as Petitioner said and did more
disturbing things tied to the Downard case, Mrs. Huffaker disclosed them to authorities,
because she, personally, began to fear Petitioner.
Though as a 64-year-old, she had some difficulty after four years had passed in
pinning down the date that the crying and upset Lanny Smith met them after a gambling
trip, Mrs. Huffaker never wavered in her reports of Petitioner’s odd statements and
behavior after the crime, including her assertion that Petitioner told her he had been at the
Downards on the date of the murders. Petitioner’s counsel wrote a letter to Mrs. Huffaker
after trial “asking her if her testimony would still remain the same, if anything has
changed since the trial; and, you know, to let me know if there is anything that you would
like to talk about.” (Dkt. 63-3, p. 1.) Mrs. Huffaker never responded to Petitioner’s
counsel. Nor has Petitioner come up with anything from either of the Huffakers showing
that Mrs. Huffaker’s testimony and view of Petitioner’s involvement in the Downard
murders had changed. While there was some evidence in the record that Victor Rodriguez
had instructed Mrs. Huffaker not to cooperate with interviews by the defense team,
nothing shows that Rodriguez influenced the content of her testimony.
Other evidence of Petitioner’s fondness for older women existed but was not
admitted at trial. Petitioner’s grandmother had died in June of 1991, less than a year
before the Downards’ murders in March 1992. (State’s Lodging A-9, p. 1463.)
Petitioner’s father told the presentence investigator that Petitioner “was extremely upset
over his grandmother’s death.” (Id., p. 3.)
The presentence investigation report included these statements by Petitioner:
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[Lanny] Smith ... describ[ed] how his grandmother would come
regularly to his home and care for his mother [who had severe epilepsy]
and the children. [Lanny] Smith declared a very close relationship with his
grandmother, and even though she had died approximately five years ago,
[Lanny] Smith became visibly emotional at discussing her. He stated he
still misses her very much and she is the only member of his family that he
associated with as “I loved.”
(State’s Lodging A-15, p. 2 (emphasis added).)
Another instance involving an older woman was that Petitioner’s golf course
supervisor reported that Petitioner once approached an older female golfer, asked her for
a hug, and then fondled her breasts. (State’s Lodging A-15, p. 3.) The prosecutor was
prepared to call the 50-year-old woman to testify at trial, but the evidence was not
permitted because it was too prejudicial. (State’s Lodging A-11, p. 2076.) In yet another
instance, a male acquaintance of Petitioner was prepared to testify that Petitioner reported
that he paid $100 for a 50-year-old prostitute in Las Vegas, and said that he “liked them
older,” when the witness said that Petitioner should have hired a younger prostitute for
that amount of money. (Id., pp. 2071-72.) That evidence also was not admitted due to its
prejudicial nature.
Though the defense has consistently maintained that Petitioner did not have the
character traits or ability to carry out a crime like the Downards’ murder, the prosecution
had evidence to contradict those assertions. The prosecution had ready an instance of
Petitioner harassing and stalking a female coworker (not an elderly woman), culminating
in a possible break-and-entry into her home. Teresa Lane, who worked with Petitioner at
J.J. North’s, would have testified that Petitioner talked to her about women’s nipples,
stared at her breasts, brushed up against her body at work in an inappropriate and
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offensive manner, and asked her a series of questions about her husband’s habits and her
home, as if he was contemplating breaking into her house. Later, someone did break into
her house, but tripped over a dog bowl and left suddenly. (State’s Lodging A-11, pp.
1929-30.)
Other testimony not admitted at trial showed that Petitioner had maintained a
relationship with the Downards, despite his consistent story that he had not been to the
Downards for many years, (State’s Lodging B-1, p. 43 (emphasis in original).)19 In a
1991 interview with police investigators, Petitioner’s mother, Julia Smith, said that
Petitioner went to the Downards often and brought her produce from their garden (the
Downards owned an empty lot next to their home on which they maintained a large
garden). (State’s Lodging A-4, p. 881.)
Petitioner’s mother was not permitted to testify, nor were her 1991-92 statements
to police investigators admitted, because at the time of trial, she suffered from bouts of
confusion and sometimes lacked lucidity due to her epilepsy. Prosecutors made an offer
of proof as to Julia’s proposed testimony, and pointed to factual consistencies between
Julia’s interview responses and other evidence in the case to demonstrate that the
interview responses were reliable when made. In that interview, Julia Smith said that it
was Petitioner, not Jeff, who was violent, explosive, and smart enough to plan such a
murder: “Jeff is too stupid” to make such a plan, Julia commented, but “Lanny is a

19

James Olson testified that he was Petitioner’s shift supervisor at J.J. North’s Grand Buffet between
September 1993 and December 1994. In a casual conversation after the murders but before Petitioner was a suspect
in the crime, Petitioner told Olson that Petitioner had never lived in Ammon and had not been there for years.
Petitioner also told Olson that Petitioner didn’t own any guns and was not interested in guns and would never have
one. (State’s Lodging A-11, pp. 1945-52.)

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thinker, calculating, would plan it, out and not leave fingerprints.” (State’s Lodging A-4,
p. 882.)
Like Mrs. Huffaker, Julia reported that Petitioner had been very upset the night of
the murders, calling her in tears and telling her that he had done something terrible.
(State’s Lodging A-4, pp. 501-02; 866-71.) Petitioner admitted to investigators that he
had called his mother, but he heavily emphasized that he wasn’t crying. (Dkt. 134-7.)
Julia also knew that the murder weapon was a .22 before investigators spoke to her.
Other evidence at trial showed that Petitioner had a negative change of personality
and habits shortly before and continuing after the date of the murder. This evidence was
provided by friends and coworkers, who had little or no motive to pin the murder on
Petitioner. Contrarily, evidence from other witnesses showed that Jeff was in a much
more positive mood during the time period in question.
Petitioner often visited and sometimes performed work for Scott and Christie
Wessell. He even babysat and transported their children from time to time. At trial,
Christie Wessell testified that a few days before the shootings, Petitioner was acting
“kind of down,” and asked them, “If you shot someone in the head with a .22, would it
kill them?” (State’s Lodging A-9, p. 1472.) She also testified that, when she mentioned to
Petitioner the fact that the Downards’ bodies had been discovered, he did not respond at
all, which she thought was strange. (Id., p. 1473.) Scott Wessell testified similarly about
the gun comment, and also testified that Petitioner told him he had bought a bathrobe for
an older lady, not his mother. (Id., p. 1458-61.)

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Petitioner’s coworker, Mike Johnson, saw the gun wrapped in carpet in
Petitioner’s car on the day of the shooting. (State’s Lodging A-11, p. 1906.) Don J.
Fronger, greens superintendent of the Pinecrest Golf Course, had a conversation with
Petitioner after the murder charges against Jeff were dismissed. Petitioner told Fronger he
had the rifle that day, and he had gone out target practicing. Fronger asked him why he
had gone, and Petitioner said that he had missed a deer two years before that. Fronger
then asked him why he hadn’t taken his deer rifle, and Petitioner responded that he just
took the .22. (State’s Lodging A-11, p. 1957-58.)
Fronger also asked Petitioner if he had killed the Downards. Petitioner replied,
“Do you think I could do something like that?” Fronger testified that Petitioner did not
ever say that he did not shoot the Downards. (Id., p. 1958.)
Tim Losche, who worked at the Pinecrest Golf Course, heard the conversation
between Fronger and Petitioner and said Petitioner told Fronger he took the .22 because
the bullets were less expensive than for the deer rifle. (State’s Lodging A-11, pp. 196667.) Losche testified that, after the death of the Downards, Petitioner was not as clean as
he used to be—he would wear a dirty shirt to the golf course, not wash his hands after
using the bathroom, and not change his stained clothing between his J.J. North’s job and
his golf course job. (Id., p. 1968.)
The two brothers’ reactions to the news of the Downards’ death were quite
different. When Petitioner was told about the Downards’ death by investigators,
Petitioner showed little reaction, other than saying, “They were nice people.” In contrast,
Officer Albert Thompson testified that, when he first informed Jeff that the Downards
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had been killed, Jeff “outright started bawling. He apologized for bawling. And told me
that he normally doesn’t cry.” When asked if Jeff’s reaction to the information of the
death of the Downards appeared to be spontaneous, the officer replied, “Yes, it did.”
(State’s Lodging A-8, p. 1001.)
Jeff’s shoes were found in an extremely muddy condition from his work during
the day, such that his shoe could not have left the impression in the dust of the Downard
bedroom, but Petitioner’s shoes that matched the dust shoe print were found clean. (Dkt.
134-10, p. 20.)
Petitioner has been afforded an opportunity to have a fair amount of discovery in
this case, and he has found nothing that bears on the testimony of the witnesses who have
tied him to having the shoes, the gun, and the motive to kill the Downards. His new finds
are not enough to warrant a hearing because they all relate to collateral issues.
The “new evidence” does not lead the court to conclude that it is more likely than not that
no reasonable juror would have convicted Petitioner if the jury had evaluated the newlypresented evidence. Petitioner has not presented a credible claim of “factual innocence.”
Those witnesses who provided testimony about motive and presence at the Downards’
home stand unchallenged. For all of the foregoing reasons, and those others cited
throughout this Order, the Court rejects Petitioner’s claim of actual innocence, both as a
stand-alone claim and as a gateway to overcome procedural default or untimeliness.

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MOTION FOR DISCOVERY
AND CERTIFICATE OF APPEALABILITY
Petitioner requests additional public funds to conduct testing on the physical
evidence. The Court concludes that Petitioner has not shown that his constitutional rights
were violated or that he has a viable actual innocence claim. Many of the claims in his
Petition are far-fetched, and some border on frivolous. Considering the limited nature of
federal habeas corpus review and balancing the rights of Petitioner to a constitutionally
adequate defense, the lack of merit of Petitioner’s claims, the need of the victims’
families for closure, the interest of the state of Idaho in the finality of its judgments, and
the cost to the taxpayers, the Court concludes that justice would not be served by
allocating further resources to Petitioner for additional discovery.
The Court’s second, more extensive review of this case shows that, as to many
issues, Petitioner has skimmed what appear to be shocking facts from their context; when
the Court carefully reviews the assertions against the record, Petitioner’s purported
“facts” lack record support. While the record clearly reflects several instances of
unprofessional and wrongful action on the part of the government, no prejudice resulted
therefrom. As a result, the Court will not grant a certificate of appealability on any aspect
of Petitioner’s claims except the narrow question of whether counsel was ineffective
regarding a rebuttal to the Greenwade testimony. This Court is now of the opinion that
Petitioner has not presented any other issues that are adequate to deserve encouragement
to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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ORDER
IT IS ORDERED:
1. The Order and Judgment previously entered in this action (Dkts. 112, 113) are
VACATED.
2. Petitioner’s Motion for Additional Discovery and to Release Evidence (Dkt.
138) is DENIED.
3. Respondent’s Motions for Extension of Time to file Answer (Dkts. 140 & 142)
are GRANTED.
4. Petitioner’s Second Petition for Writ of Habeas Corpus is DISMISSED with
prejudice.
5. The Court will not issue a certificate of appealability on any aspect of
Petitioner’s claims except the narrow question of whether counsel was
ineffective regarding a rebuttal to the Greenwade testimony.
6. Upon the filing of a timely notice of appeal, the Clerk of Court shall forward
the necessary paperwork to the Court of Appeals for the Ninth Circuit.

DATED: March 31, 2016

_________________________
Edward J. Lodge
United States District Judge

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