Soper v. Woolf

Filing 29

MEMORANDUM DECISION AND ORDER granting 16 Motion for Summary Dismissal; granting 18 Petitioner's Motion for Extension of Time; denying as moot 23 Petitioner's Motion to Order Release of Court Transcript; granting 24 Respondent' s Motion for Extension of Time; finding as moot 27 Petitioner's Motion for Summary Update. The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THOMAS MORGAN SOPER II,
Case No. 4:13–cv-00302-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

JIM WOOLF,
Respondent.

Pending before the Court is Respondent’s Motion for Summary Dismissal, which
is now fully briefed. (Dkts. 16, 21, 25.) Also pending is Petitioner’s Motion to Order
Release of Transcript, and several other motions. (Dkt. 23, 18, 24, 27.) Both parties have
consented to the jurisdiction of a United States Magistrate Judge to conduct all
proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 11.)
Having reviewed the record, including the state court record, the Court finds the
parties have adequately presented the facts and legal arguments in the briefs and record
and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court will decide this matter on the written motions, briefs, and record
without oral argument. D. Idaho L. Civ. R. 7.1(d). The Court enters the following Order,
granting the Motion for Summary Dismissal.

MEMORANDUM DECISION AND ORDER - 1

FACTUAL BACKGROUND
Petitioner pleaded guilty to and was convicted of one count of felony driving under
the influence, in the Fifth Judicial District Court in Cassia County, Idaho. The judgment
of conviction was entered on April 17, 2012. (State’s Lodging A-20, A-19.) Petitioner
filed a Rule 35 motion to reconsider the sentence on July 30, 2012. (State’s Lodging A23). The state district court denied the motion to reconsider on August 3, 2012. (State’s
Lodging A-26.)
Even though the time period for appeal is only 42 days, Petitioner did not file a
notice of appeal in his criminal case until January 22, 2013, which was 280 days after
judgment was entered, and 172 days after the order denying the motion to reconsider was
entered. (State’s Lodging A-27.) Petitioner was appointed counsel for the appeal. The
Idaho Supreme Court conditionally dismissed the appeal as untimely. (State’s Lodging B1.) Through counsel, Petitioner filed a response to the order of conditional dismissal,
recognizing that the notice of appeal was untimely, but reiterating that Petitioner would
like to proceed with the appeal. (State’s Lodging B-2.) The Idaho Supreme Court
concluded that the notice of appeal was untimely and dismissed the action. (State’s
Lodging B-3.) The remittitur was issued on May 9, 2013. (State’s Lodging B-4.)
Petitioner did not file a petition for post-conviction relief in the state court.
Petitioner filed his federal Petition for Writ of Habeas Corpus on July 12, 2013.
(Dkt. 3.) He brought four claims: (1) a Fourth Amendment claim that the arresting officer
failed to show him the arrest warrant or inform him of the nature of the pending charges;
MEMORANDUM DECISION AND ORDER - 2

(2) a Sixth Amendment ineffective assistance of counsel claim that his counsel did not
contest the fact that Petitioner was served with an unlawful warrant 143 days after his
arrest, and that his counsel coerced him to plead guilty; (3) an Eighth Amendment claim
that he was unlawfully imprisoned with no knowledge of the charges at the time of his
arrest, and that his bail was set excessively high at $75,000 and later revoked; and (4) a
Fourteenth Amendment claim that the State failed to abide by its own statutory
commands, amounting to an arbitrary deprivation by the State.
The Court has already determined that Claim 3, unlawful imprisonment and
excessive bail, is not cognizable on post-conviction federal habeas corpus review and is
subject to dismissal for failure to state a federal claim upon which relief can be granted.
MOTION FOR SUMMARY DISMISSAL
In the Motion for Summary Dismissal, Respondent asserts that all of Petitioner’s
claims are procedurally defaulted because he failed to properly present them to the Idaho
Supreme Court.
1.

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

dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court.” The Court may also take judicial notice of relevant state court records in
determining whether to dismiss a petition. Fed. R. Evid. 201(b); Dawson v Mahoney, 451
F.3d 550, 551 (9th Cir. 2006). Where appropriate, a respondent is permitted to file a
MEMORANDUM DECISION AND ORDER - 3

motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602
(9th Cir. 1989).
A habeas petitioner must exhaust his remedies in the state courts before a federal
court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). This means that the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims in a petition seeking review before that court. Id. at
847.
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray v. Netherland, 518 U.S. 152, 161-62 (1996). Procedurally defaulted claims include
those within the following circumstances: (1) when a petitioner has completely failed to
raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim,
but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3)
when the Idaho courts have rejected a claim on an adequate and independent state
procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson,
501 U.S. 722, 750 (1991).
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To be an “adequate” state ground, a state court’s procedural bar must be one that is
“‘clear, consistently applied, and well-established’ at the time of the petitioner’s
purported default.” Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting
Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). A state procedural bar is
“independent” of federal law if it does not rest on federal grounds and is not intertwined
with federal grounds. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
2.

Discussion of Claims that Were, or Could Have Been, Presented on Direct
Appeal
The following claims could have been presented on direct appeal: Claim 1, the

Fourth Amendment claim that the arresting officer failed to show him the arrest warrant
or inform him of the nature of the pending charges; and Claim 4, the failure of a state to
abide by its own statutory commands in the criminal procedures applied in his case.
The record is clear that Petitioner had 42 days in which to file an appeal, but he did
not do so until 172 days beyond the last district court order issued in his criminal case,
which was 130 days too late. See Idaho Appellate Rule 14(a). The record is also clear that
the Idaho Supreme Court did not hear the merits of his appeal, but denied it at the outset
as untimely.
Respondent sets forth a sufficient legal basis to show that the Idaho Supreme
Court’s rule regarding timeliness is an adequate and independent procedural bar. The
Court is unaware of any cases in which the Idaho Supreme Court has overlooked the
untimeliness of a notice of appeal and has heard the merits of such a case regardless of

MEMORANDUM DECISION AND ORDER - 5

when it was filed. The state-imposed filing deadline does not implicate federal law.
Therefore, Claims (1) and (4) are procedurally defaulted.
3.

Discussion of Claims that Should Have Been Brought on Post-Conviction
Review
In Idaho, the post-conviction setting is the “preferred forum for bringing claims of

ineffective assistance of counsel,” although in limited instances such claims may be
brought on direct appeal “on purported errors that arose during the trial, as shown on the
record” (as opposed to matters that must be proven by referring to evidence outside the
trial court record). Matthews v. State, 839 P.2d 1215, 1220 (Idaho 1992). Assuming that
Claim 2 —an ineffective assistance of counsel claim for failing to contest service of the
arrest warrant and coercing Petitioner to plead guilty—is of the nature that it should have
been brought on post-conviction appeal, the Court concludes that it is procedurally
defaulted, because Petitioner did not bring a post-conviction action at all.
4.

Standard of Law Governing Exceptions to Procedural Default
If a claim is procedurally defaulted, a federal district court can still hear the merits

of the claim if a petitioner meets one of two exceptions: a showing of adequate legal
cause for the default and prejudice arising from the default, see Coleman v. Thompson,
501 U.S. 722, 731 (1991), or a showing of actual innocence, which means that a
miscarriage of justice will occur if the claim is not heard in federal court. See Murray v.
Carrier, 477 U.S. 478, 488 (1986); Schlup v. Delo, 513 U.S. 298, 329 (1995).

MEMORANDUM DECISION AND ORDER - 6

To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
that some objective factor external to the defense impeded his or his counsel’s efforts to
comply with the state procedural rule at issue. Murray, 477 U.S. at 488. To show
“prejudice,” a petitioner bears “the burden of showing not merely that the errors [in his
proceeding] constituted a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” United States v. Frady, 456 U.S. 152, 170 (1982).
5.

Discussion of Petitioner’s Cause and Prejudice and Miscarriage of Justice
Arguments
A.

Actions of Direct Appeal Counsel

With any references to specific dates conspicuously missing from his argument,
Petitioner alleges: “My assigned appellate attorney failed to file my brief with my claims
after I sent them to her office. Sarah Thomas was my assigned attorney.” (Dkt. 21, p. 3.)
This allegation does not address why the pro se notice of appeal was filed 130 days late.
Sarah Thomas of the state appellate public defender’s office was not appointed to
Petitioner’s case until after he filed the notice of appeal. (Dkt. A-1.)
In any event, there was no reason for Ms. Thomas to file a pro se appellate brief
from Petitioner unless the Idaho Supreme Court first determined it would allow the
untimely appeal to proceed. Ms. Thomas’s response to the Idaho Supreme Court’s notice
of conditional dismissal of the appeal acknowledged the lateness of the pro se notice of

MEMORANDUM DECISION AND ORDER - 7

appeal but reiterated Petitioner’s desire to appeal. Nothing in the record suggests that
there was any other plausible argument to be made on Petitioner’s behalf.
Petitioner’s argument fails for lack of a causal link, because his attorney had
nothing to do with the lateness of Petitioner’s notice of appeal, having been appointed
after its late filing. Accordingly, this argument cannot serve as “cause” to excuse the
procedural default of his claims.
B.

Access to the Courts Thwarted by Jail Officials

As to conditions within the jail, Petitioner alleges:
I do agree to the failure to file within 42 days after entry of
judgment. The cause for my delay was in part that I was ignored by officers
at the MiniCassia Criminal Justice Center (Jail) for my request to access the
courts through the Law Library, of which at that time was being used as a
holding cell in the booking dept.
(Dkt. 21, pp. 3-4.)
Like his other excuses for the late filing, Petitioner provides no factual details to
support this claim. Nothing in the record shows that he was denied access to the courts for
172 days. Nothing in the record shows that Petitioner made a diligent effort to remedy the
alleged problem via inmate concern forms or by informing the Idaho Supreme Court that
lack of access to a law library was the reason that the notice of appeal was untimely,
when Petitioner was given the opportunity to respond to the notice of intent to dismiss the
appeal for untimeliness. Petitioner’s conclusory statements offered to account for the long
period of time during which the notice of appeal was delayed are insufficient to
demonstrate adequate cause. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (no
MEMORANDUM DECISION AND ORDER - 8

cause shown where, even though prison officials delayed prisoner’s receipt of a necessary
form, the prisoner would have needed no more than a few days to fill out the form when
he finally received it).
C.

Failure of Trial Counsel to Aid with an Appeal

Petitioner further alleges: “My assigned public defender Timothy Schneider would
only file my Rule 35 Request. I was on my own [to file the notice of appeal] with no legal
help whatsoever.” (Dkt. 21, p. 4.) Again, Petitioner appears to be purposefully vague with
his allegations, stopping short of stating that he asked Mr. Schneider to file a notice of
appeal for him, and Mr. Schneider refused to do so.
An allegation of ineffective assistance of counsel (a secondary IAC claim) will
serve as cause to excuse the default of another claim (the primary claim), only if the
secondary IAC claim itself is not procedurally defaulted or, if defaulted, the petitioner can
show cause and prejudice for the default of the secondary IAC claim. Edwards v.
Carpenter, 529 U.S. 446, 454 (2000). Petitioner did not file a post-conviction action
alleging that Mr. Schneider failed to file a notice of appeal for him; thus, the alleged
ineffective assistance of Mr. Schneider cannot be used to excuse the default of the claims
that Petitioner wished to bring in the direct appeal. In addition, the record does not reflect
any other fact that constitutes cause to excuse the default of the secondary IAC claim.
Hence, Petitioner has not shown cause for the default of his claims.

MEMORANDUM DECISION AND ORDER - 9

D.

No Martinez v. Ryan “Cause”

In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the United States Supreme Court held
that inadequate assistance of post-conviction review counsel or lack of counsel “at initialreview collateral review proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.” Id. at 1315. The only claim in the
Petition to which Martinez might apply is Claim 2, which is a claim that Petitioner’s trial
counsel failed to contest service of the arrest warrant and coerced him into pleading
guilty. The Court concludes that Martinez would not apply because Petitioner neither
filed a post-conviction application, nor sought appointment of counsel to file a postconviction application.
E.

Miscarriage of Justice

Petitioner asserts that he is actually innocent of felony DUI, because the State
cannot charge an individual with felony DUI unless a grand jury returns an indictment
against him. Petitioner argues that an information is an inappropriate charging vehicle for
the crime of felony DUI. He asserts that he is actually innocent of his DUI conviction
because he was wrongly charged by information.
Respondent argues that this Court should extend the law to hold that a petitioner
who pleaded guilty is not entitled to assert actual innocence. (Dkt. 25.) The Court finds it
unnecessary to address this argument because it concludes that Petitioner’s claim has no
basis in the law. In Warren v. Craven, 271 P.3d 725 (Idaho App. 2012), the Idaho Court
of Appeals explained:
MEMORANDUM DECISION AND ORDER - 10

On any felony criminal charge, the State may proceed by indictment
or information. IDAHO CONST. art. I, § 8 (“No person shall be held to
answer for any felony ... unless on presentment or indictment of a grand
jury or on information of the public prosecutor ....”); I.C. § 19–901; I.C.R.
7(a). Informations have long been held to be of equal dignity with
indictments, subject to the limitations that a defendant may only be accused
by information after commitment by a magistrate and that an information
cannot be issued if the charge has been previously brought before and
ignored by a grand jury. Ex Parte Winn, 28 Idaho 461, 462, 154 P. 497, 498
(1916); see also State v. Edmonson, 113 Idaho 230, 233, 743 P.2d 459,
462–63 (1987). . . . [I]n line with state constitutional and statutory
requirements, the district courts of this state have jurisdiction to hear felony
cases after a preliminary examination and filing of an information—without
the charge ever being before a grand jury. I.C. § 19–1301 (Courts “possess
and may exercise the same power and jurisdiction to hear, try, and
determine prosecutions upon information for crimes ... as they possess and
may exercise in cases of like prosecutions upon indictments.”); In re Winn,
28 Idaho at 462, 154 P. at 498.
Id. at 728.
Petitioner is incorrect in his argument that “a felony falls under federal rules and
laws,” and that, as a result, the court had a duty to ensure that he waived prosecution by
indictment. (Dkt. 21, p. 4.) The Federal Rules of Civil Procedure have no application in a
state felony criminal case. In addition, the Fifth Amendment guarantee of the right to
indictment by a grand jury applies only to federal convictions. The Supreme Court has
long held that there is no federally protected right to indictment by a grand jury in state
criminal proceedings. Hurtado v. California, 110 U.S. 516 (1884); Alexander v.
Louisiana, 405 U.S. 625, 633 (1972)).

MEMORANDUM DECISION AND ORDER - 11

There is no other basis in the record from which one could find that Petitioner is
actually innocent of the charge of felony DUI. Therefore, Petitioner is not entitled to
application of the miscarriage of justice exception.
5.

Petitioner’s Request for Additional Court Transcripts
Petitioner requests “the release of all court transcripts held by the Cassia County

District Court under case #CR-2011-6452.” (Dkt. 23, p. 1.) Petitioner alleges that the
transcripts are needed to “document evidence to be added to this case.” (Id., p. 2.)
Petitioner has attached a letter he wrote to the Cassia County court reporter seeking
“comments made by Mr. Blaine Cannon from 10:47 A.M. to 10:48 A.M” during
Petitioner’s sentencing hearing. (Dkt. 23, p. 4.)
Petitioner has already informed the Court and Respondent that the content of the
comment sought is that Mr. Cannon said, “Me and Mr. Soper have a long history
together.” (Dkt. 21, p. 2.) For purposes of the Motion to Dismiss, the Court will assume
that Mr. Cannon made that statement at Petitioner’s sentencing. Petitioner attempts to use
this statement to assert that Mr. Cannon had previously aided a public defender who
functioned as Petitioner’s defense counsel for a misdemeanor DUI charge in 1998, and
that Mr. Cannon had a conflict of interest that amounted to “prosecutorial misconduct”
and “prosecutorial vindictiveness.” (Id.)
The Court concludes that Petitioner has not alleged that the one-minute set of
comments from Mr. Cannon, or any other transcript in the record, would aid his cause and
prejudice or miscarriage of justice argument. If Petitioner is attempting to bring a new
MEMORANDUM DECISION AND ORDER - 12

prosecutorial misconduct claim or produce new evidence in support of his other claims,
he is not entitled to have the Court address the merits of his claims without first
adequately addressing the threshold issue of procedural default. The transcripts are not
necessary to aid Petitioner at this stage of the proceedings. Accordingly, the request will
be denied as moot.
6.

Conclusion
Claim 3 is not cognizable on federal habeas corpus review. For the reasons set

forth above, the Court concludes that Claims 1, 2, and 4 are procedurally defaulted.
Petitioner has not shown that cause and prejudice exists to excuse the default of his
claims, nor has he shown that he is actually innocent of the crime of which he was
convicted. Accordingly, this entire action will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Extension of Time (Dkt. 18) is GRANTED.

2.

Petitioner’s Motion to Order Release of Court Transcript (Dkt. 23) is
DENIED as MOOT.

3.

Respondent’s Motion for Extension of Time (Dkt. 24) is GRANTED.

4.

Petitioner’s Motion for Summary Update (Dkt. 27) is MOOT.

5.

The Motion for Summary Dismissal (Dkt. 16) is GRANTED, and the
Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED with prejudice.

MEMORANDUM DECISION AND ORDER - 13

6.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner
files a timely notice of appeal, the Clerk of Court shall forward a copy of
the notice of appeal, together with this Order, to the United States Court of
Appeals for the Ninth Circuit. Petitioner may seek a certificate of
appealability from the Ninth Circuit by filing a request in that court.
DATED: November 7, 2014

Honorable Candy W. Dale
United States Magistrate Judge

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