Johnson v. Kirkman

Filing 42

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: The Amended Petition for Writ of Habeas Corpus (Dkt. 8 ) is DENIED and DISMISSED with prejudice.The Court will issue a certificate of appealability for Claim Seven. As to the other claims, the Court doe s not find their resolution to be reasonably debatable, and. 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 appe al, together with this Order, to the United States Court of Appeals for the Ninth Circuit. Petitioner may seek a certificate of appealability for other claims from the Ninth Circuit by filing a request in that court. Signed by US Magistrate Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SARAH MARIE JOHNSON,
Petitioner,
vs.

Case No. 4:14-cv-00395-CWD
MEMORANDUM DECISION
AND ORDER

AMANDA GENTRY,
Respondent.

Petitioner Sarah Johnson (Sarah) is proceeding on her Amended Petition for Writ
of Habeas Corpus, which raised six claims. Dkts. 8, 8-1. The Court conditionally granted
Respondent’s Motion for Partial Summary Dismissal on Claims One, Three, Four, Five,
and Six on procedural default grounds, and alternatively denied Claims One and Six for
their obvious lack of merit. Dkt. 30. Claims Two and Seven were properly exhausted and
are ready for a merits adjudication. The Court also permitted Sarah to show that
procedurally defaulted claims Three, Four, and Five qualified for the exception found in
Martinez v. Ryan, 566 U.S. 1 (2012). The parties have submitted additional briefing
requested by the Court.

The Court takes judicial notice of the records from Petitioner’s state court
proceedings. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1

MEMORANDUM DECISION AND ORDER - 1

(9th Cir. 2006). Having carefully reviewed the record in this matter, including the
state court record, and having considered the arguments of the parties, the Court
concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Therefore, the Court enters the following Order.
REVIEW OF CLAIMS TWO AND SEVEN ON THE MERITS
The court reviews two claims that the Idaho Supreme Court decided on the merits:
Claim Two, a Sixth Amendment ineffective assistance of counsel claim; and Claim
Seven, an Eighth Amendment cruel and unusual punishment fixed life sentence claim.
1. Standard of Law for Review of Claims on the Merits
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). Petitioners are required to exhaust their state court remedies for each of their
federal claims before coming to federal court, or their claims are considered
“procedurally defaulted.” That means “fairly presenting the claim” based on a federal
theory to the highest state court for review in the manner prescribed by state law. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has properly
exhausted their state court remedies for a particular claim, a federal district court cannot
grant relief on that claim, although it does have the discretion to deny the claim. 28
U.S.C. § 2254(b)(2). The federal court reviews the state court record, in particular, the
petitioner’s appellate briefing and the state court decisions to determine whether a claim
has been properly exhausted.
MEMORANDUM DECISION AND ORDER - 2

If a claim is properly exhausted, the federal district court reviews the “last statecourt adjudication on the merits” to assess whether habeas corpus relief is warranted.
Greene v. Fisher, 565 U.S. 34, 40 (2011). In Idaho, if an Idaho Supreme Court decision
summarily denies a petition for review with no explanation of why relief was denied, the
federal district court “looks through” the summary dismissal and presumes the Idaho
Supreme Court agreed with, and adopted the reasons given by, the Idaho Court of
Appeals. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Harrington v. Richter, 562
U.S. 86, 98 (2011); Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016).1
The standard for review of a state court judgment that adjudicated a petitioner’s
federal claims on the merits is set forth in Title 28 U.S.C.§ 2254(d), as amended by the
Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Relief may be
granted only if the state court’s adjudication of the petitioner’s claim:
1.
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
2.
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state
court proceeding.
28 U.S.C. § 2254(d).

1

Where “the last reasoned opinion on the claim explicitly imposes a procedural default,” the
federal court is to “presume that a later decision rejecting the claim did not silently disregard that bar and
consider the merits”; however, this the presumption can be refuted by “strong evidence.” Kernan v.
Hinojosa, 578 U.S. 412, 415 (2016).
MEMORANDUM DECISION AND ORDER - 3

When a petitioner contests the state court’s legal conclusions in a federal petition,
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.
These tests require the federal court to identify specific United States Supreme Court
cases of precedent that amount to “clearly established” law in existence at the time of the
last state court decision.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of §
2254(d)(1), the petitioner must show that the state court—although it identified “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). Importantly, § 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,” nor does it “license federal courts to treat the
failure to do so as error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014).
A federal court may not grant habeas relief simply because it concludes in its
independent judgment that the state court’s decision is incorrect or wrong; rather, the
MEMORANDUM DECISION AND ORDER - 4

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, then relief is not permitted
under § 2254(d)(1). Richter, 562 U.S. at 101. The United States Supreme Court has
emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).
Although 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, 569 U.S. 58, 64 (2013).
Generally, the merits of the claims in a federal habeas corpus petition are decided
only on the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 180
(2011). Title 28 U.S.C. § 2254(e)(2) prohibits the use of new evidence (with or without
an evidentiary hearing) in federal habeas matters without satisfying strict requirements.
Shinn v. Ramirez, 142 S. Ct. 1718, 1738-39 (2022); Holland v. Jackson, 542 US. 649,
653 (2004) (per curiam)).
Only in certain circumstances may a federal petitioner challenge a state’s legal
conclusions without satisfying AEDPA’s “contrary to or unreasonable application of
MEMORANDUM DECISION AND ORDER - 5

clearly established law” provision of § 2254(d)(1). That provision does not apply,
clearing the way for the federal district court to review the claim de novo if: (1) the state
appellate court did not decide a properly asserted federal claim, (2) the state court’s
factual findings are unreasonable under § 2254(d)(2), or (3) 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 circuit precedent, limited only by the non-retroactivity
rule of Teague v. Lane, 489 U.S. 288 (1989).
Under de novo review, 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, 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).
In this case, a change of venue was granted from Blaine County to Ada County,
because of pretrial publicity. Fourth Judicial District Judge Barry Wood presided over
Sarah’s trial and sentencing proceedings. See State’s Lodging A-21. Blaine County
Prosecuting Attorney Jim J. Thomas appeared for the State of Idaho, and Robert “Bob”
Pangburn and Mark Stephen Rader represented Sarah in trial proceedings.

MEMORANDUM DECISION AND ORDER - 6

2. Discussion of Claim Two
Claim Two is that Mr. Pangburn was ineffective for failing to elicit testimony from
Robert Kerchusky, Sarah’s fingerprint expert, that the unidentified prints found on the
gun, scope, and ammunition were fresh prints and were not deposited well before the
crime occurred, as the State argued at trial. Dkt. 8-1, pp. 5-13.
A. Ineffective Assistance of Counsel Standard of Law
The clearly established law governing a Sixth Amendment claim of ineffective
assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). To
succeed on an ineffective assistance claim, a petitioner must show that (1) counsel’s
performance was deficient in that it fell below an objective standard of reasonableness,
and that (2) the petitioner was prejudiced by the deficient performance. Id. at 684.
In assessing trial counsel’s performance under Strickland’s first prong, a
reviewing court must assess counsel’s conduct at the time that the challenged act or
omission occurred, making an effort to eliminate the distorting lens of hindsight. Id. at
689. The court must indulge in the strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance. Id.
In assessing prejudice under Strickland’s second prong, a court must find that,
under the particular circumstances of the case, there is a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different. Id. at 684,
694. A reasonable probability is one sufficient to undermine confidence in the outcome.
Id. at 694.
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A petitioner must establish both deficient performance and prejudice to prove an
ineffective assistance of counsel claim. Id. at 697. On habeas review, the court may
consider either prong of the Strickland test first, or it may address both prongs, even if
one is deficient and will compel denial. Id.
The Strickland standard, giving deference to counsel’s decisionmaking, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to federal district courts reviewing Strickland
claims on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S.Ct. 1495. A state court must be granted a deference and
latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101.
B. Discussion
Sarah contends that Mr. Pangburn was ineffective for failing to elicit testimony
from her fingerprint expert Robert Kerchusky that the unidentified prints found on the
gun were “fresh.” Sarah argues that this missing testimony would have given the jury

MEMORANDUM DECISION AND ORDER - 8

reason to find that the unknown person who deposited the prints shot her parents. It was
undisputed at trial that the owner of the gun was Mel Speegle, who rented the Johnson’s
over-garage apartment. After trial, the unidentified fingerprints were matched to
Christopher Hill, who had been a caretaker of Speegle’s ranch several years earlier. This
discovery gave new life to Sarah’s claim. She properly exhausted this claim in the first
post-conviction matter. State’s Lodging E-3, pp. 815-817.
i.

State Court Proceedings

At trial, Idaho State Police fingerprint examiner Tina Walthall testified that she
compared fingerprint cards from numerous individuals of interest and from the
fingerprint data base with fingerprints lifted from the crime scene, including those found
on the stock of the rifle, the scope from the rifle, and two boxes of .264 shells. State’s
Lodging A-17, pp. 3009, 3017-3018, 3027-3028, 3042-3044, 3049-3052. As of the trial
date, she had found no matches. Id., pp.3027-3028, 3042-3056.
Walthall also testified that there is no way to date a fingerprint to determine when
an item was touched, but that “[i]t is probable that a fingerprint would last up to and
exceeding a year, providing there has been nothing to damage that fingerprint in the
interim. Id., pp. 3028, 3044, 3052, 3058, 3062, 3073.
Sarah brought this claim in her initial post-conviction action before Judge G.
Richard Bevan, who took over the case in 2009. In his findings of fact in 2011, Judge
Bevan summarized Kerchusky’s trial rebuttal of Walthall’s testimony, as well as
Kerchusky’s testimony at the post-conviction evidentiary hearing:
MEMORANDUM DECISION AND ORDER - 9

The defense called [Robert] Kerchusky to testify at
Johnson’s trial, and again before this court [on postconviction review].
During the trial, Kerchusky was asked by [defense
counsel] Pangburn how long fingerprints can last. He replied,
“we can’t be sure how long they’re going to last,” but that
“pretty much on my experience, after a year, they’re just
about gone, as far as I’m concerned,” [clarifying his opinion
that latent prints on a nonporous surface will not last more
than a year].
Kerchusky further testified that fingerprints will dry up
and evaporate over the course of one year. Kerchusky also
agreed, however, that it is fair to say that a fingerprint on a
box could last for years and years and years.
Mr. Kerchusky, however, acknowledged that aging of
fingerprints on nonporous surfaces is a controversial subject
because “there’s so many variables as far as weather, where
it’s located. I mean there’s so many things that come into it,
there’s no way in the world that anybody could write any
article on it.”
Kerchusky also acknowledged that fingerprints on
porous surfaces can last for years and that there are some
“rare” instances where a latent print that was over a year old
could be found on a nonporous surface. Kerchusky further
testified that although he could not determine how old a
fingerprint is, he “still would have an opinion as far as
whether it’s a fresh print or not.”
State’s Lodging E-7, p. 251.
The jury was aware that there was a set of matching fingerprints on the scope, the
high-power rifle, and the box of shells, and that the set did not match any of the carded
fingerprints collected by investigators. State’s Lodging F-7, p. 6. The jury knew that the
shooter likely took care not to leave any fingerprints on the trigger, trigger guard, or bolt

MEMORANDUM DECISION AND ORDER - 10

lever. There were latex and leather gloves found at the scene. Mr. Pangburn argued in
closing—based on Kerchusky’s testimony that fingerprints do not last more than a year—
that the unknown prints on the gun were the only prints on the gun; therefore, that
showed that only one unknown person handled the gun within the past year, not Sarah.
State’s Lodging A-11, pp. 272-74. The evidence of the unknown fingerprints that—
according to the experts must have been less than a year old—was “huge” evidence, Mr.
Pangburn argued to the jury. Id. at 276.
In determining whether Mr. Pangburn performed deficiently, Judge Bevan made
the following relevant factual findings:
• Kerchusky found fault with Pangburn because Pangburn
did not specifically ask him whether the unknown
fingerprints were “fresh.” State’s Lodging E-7, para. 233.
• Kerchusky testified that several of the prints were fresh,
and that he had spoken to Pangburn during the trial,
requesting that Pangburn put him back on the stand to
discuss the freshness of the prints, but Pangburn declined
to do so. Id.
• [T]he record of Pangburn’s examination sets forth that he
was prepared for the examination [of Kerchusky], and that
he discussed various hypotheticals that brought the
pertinent issue (aging of fingerprints) before the jury for
Kerchusky to comment on (e.g. TT:5071-5072). Id. at
para. 235.
Judge Bevan concluded on post-conviction review that Mr. Pangburn’s
performance was not deficient for the following reasons:
• [T]he “defense, through Pangburn, had a definite strategy
regarding the fingerprints; that Pangburn was aware of
MEMORANDUM DECISION AND ORDER - 11

this strategy well-ahead of his examination of Kerchusky
and that he, as a matter of strategy, asked the questions he
chose to ask of Kerchusky without asking about
“freshness” per se. State’s Lodging E-7, para 238.
• Pangburn was prepared regarding the defense fingerprint
theory, and he exercised his judgment and skill in
presenting those issues to the jury. He also argued the
freshness of the fingerprints to the jury in his closing. (See
Supplemental Appeal Transcript, 270:11-272:25) (“You
know, these things start getting a year old, and you’re just
not going to see it…. Those fingerprints had not been
there for very long.”). Id., para 239.
On appeal, the Idaho Supreme Court agreed that Mr. Pangburn’s performance was
not deficient and was the result of a strategic decision:
Johnson does not present convincing evidence that
Pangburn was ineffective or that she might not have been
convicted but for his mistakes. First, she provides no evidence
to contradict the district court's factual finding that “Pangburn
was prepared regarding the defense fingerprint theory and he
exercised his judgment and skill in presenting those issues to
the jury.” Second, her argument that Pangburn’s omission
served no tactical or strategic purpose is misplaced. She
argues that because further questioning of Kerchusky would
have aided her case, the omission of such questioning could
not be strategic. While Pangburn did not specifically ask
Kerchusky if the fingerprints were “fresh,” he did elicit
testimony that prints do not last on a non-porous surface, like
a gun, for more than a year. Pangburn’s choice of words and
mode of questioning in examining Kerchusky falls within the
area of tactical or strategic decisions. See Giles v. State, 125
Idaho 921, 924, 877 P.2d 365, 368 (1994). In the absence of
evidence that these strategic decisions were the product of
inadequate preparation or ignorance of the relevant law, we
hold that Pangburn’s performance was not deficient.
State’s Lodging F-7, pp. 4-5.

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The Idaho Supreme Court also determined that Sarah suffered no prejudice from
the way Mr. Pangburn presented and argued the fingerprint evidence at trial:
Moreover, Johnson has failed to show that further
questioning of Kerchusky would have produced a different
result at trial. Unless prejudice is presumed, the accused bears
the weighty burden of demonstrating prejudice to the
outcome. Id. In this case, Johnson does not argue that
prejudice is presumed, and the record supports the district
court's conclusion that the information regarding the
freshness of the fingerprints was before the jury. Kerchusky
testified that prints do not last on a non-porous surface for
more than a year. Speegle had previously testified that, to his
knowledge, the gun had not been handled since the day he
moved in—over a year before the murders. And, Pangburn
highlighted to the jury the theory that whoever left the
unidentified fingerprints on the gun and ammunition box was
the person who committed the murders. Indeed, in his closing
argument Pangburn stated, “You know, these things start
getting a year old, and you're just not going to see it.... Those
fingerprints had not been there very long. They couldn't have
been.” Thus, Johnson’s argument that further details
concerning the freshness of the prints would have somehow
changed the outcome of trial is without merit and the district
court correctly denied her ineffective assistance of counsel
claim.
Id., p. 5.
ii.

Analysis

This Court agrees that that the state district court’s factual finding and conclusion
that Mr. Pangburn’s handling of the fingerprint issue was a reasonable strategic decision
is supported by ample evidence in the record. Sarah has not pointed to facts or provided
argument showing that the manner in which Mr. Pangburn handled the age of the
unidentified fingerprints was not strategic, but was the result of lack of preparation. Mr.
MEMORANDUM DECISION AND ORDER - 13

Pangburn, in fact, argued the age of the fingerprints in closing argument in an effective
manner. The Idaho Supreme Court reasonably applied Strickland’s first prong in finding
that Mr. Pangburn’s performance was not deficient. State’s Lodging F-7, pp. 3-5.
Further, this Court concludes that, even Mr. Pangburn did not make a specific
strategic decision about the extent of examination regarding the “freshness” of the
fingerprints, or did not thoroughly think through strategy when rejecting Kerchusky’s
request to be recalled as a witness to testify about the “freshness” of the unidentified
prints, Sarah suffered no prejudice under Strickland’s second prong.
First, there was no need to use the specific term “fresh.” Both Walthall and
Kerchusky testified that fingerprints were likely to last only about a year. The only
fingerprints found on the gun were the unidentified ones, leading to the logical
conclusion that no “fresh” prints of Sarah’s were found on the gun and that the only
person to touch the gun ungloved in the last year was an unidentified person. Mr.
Pangburn directed the jury’s attention to the one-year mark and the unidentified prints
being the only ones within that time frame, which made the same point as the testimony
Sarah believes Mr. Pangburn should have elicited from Kerchusky.
In addition, it is clear that Sarah wore gloves to handle the weapon. Two leather
gloves were introduced into evidence, the right-handed one found in Sarah’s bedroom
and the left-handed one found wrapped in Sarah’s pink robe found in the garbage
dumpster, along with a latex glove containing Sarah’s DNA. State’s Lodging E-7, para.
29-30. Therefore, even if Mr. Pangburn had recalled Kerchusky to permit him to make a
MEMORANDUM DECISION AND ORDER - 14

stronger point about the “fresh” prints, and Kerchusky’s theory would have survived
cross-examination intact, too much other evidence pointed to Sarah as the perpetrator.
Even upon the much-later identification of the prints as belonging to Christopher Hill,
there still was no motive and no other evidence supporting a theory that Hill killed
Sarah’s parents. Hill’s explanation about why his fingerprints were on the gun was
reasonable—Hill said that, in 2000, he had taken the rifle out, tried to sight it, and shot it
several times while he was a caretaker at Speegle’s ranch. State’s Lodging E-7, par. 247.
Based on all of the foregoing, the Court concludes that no additional testimony
about “freshness” or evidence that the unidentified prints were Hill’s would have added
anything to the jury’s understanding of the issue, let alone would have resulted in a
different verdict, especially in light of the overwhelming evidence of Johnson’s motive
and guilt presented by the State at trial. See Dkt. 30, pp. 55-63 (Order rejecting actual
innocence assertion). The Idaho Supreme Court’s decision was a reasonable application
of Strickland’s second prong, based upon a reasonable factual determination. The Court
concludes that Petitioner is not entitled to relief on Claim 2.
3. Discussion of Claim Seven
Sarah asserts that her two sentences of life without parole (LWOP) procedurally and
substantively violate the Eighth Amendment, because she was only sixteen years old
when she committed the crimes and therefore had less culpability than an adult.

MEMORANDUM DECISION AND ORDER - 15

A. Standard of Law
The Eighth Amendment “guarantees individuals the right not to be subjected to
excessive sanctions,” a right that “flows from the basic precept of justice that punishment
for crime should be graduated and proportioned to both the offender and the offense.”
Miller v. Alabama, 567 U.S. 460, 469 (2012) (internal citation and punctuation omitted).
For juvenile offenders, both substantive and procedural considerations in sentencing are
required under the Eighth Amendment.
i.

Substantive Considerations

In recent decades, the United States Supreme Court has relied on the Eighth
Amendment to circumscribe the extent of punishment that can be imposed upon juvenile
offenders. In Roper v. Simmons, 543 U.S. 551 (2005), the Court prohibited capital
punishment for juvenile offenders. In Graham v. Florida, 560 U.S. 48 (2010), the Court
prohibited LWOP sentences for nonhomicide juvenile offenders.
In Miller, the Court held that the Eighth Amendment prohibits mandatory LWOP
sentences for juvenile offenders. 567 U.S. at 465. In Montgomery v. Louisiana, 577 U.S.
190, 207-08 (2016), the Court held that Miller announced a new substantive rule, which
made it possible for Miller to be retroactive. Id. at 212.
Courts agree that Montgomery did not extend Miller; it addressed only Miller’s
retroactivity. For example, in Jones v. Mississippi, 141 S. Ct. 1307, 1315–16 (2021), the
most recent case addressing juvenile LWOP, the United States Supreme Court clarified:

MEMORANDUM DECISION AND ORDER - 16

As Montgomery itself explained, the Court granted certiorari
in that case not to consider whether the rule announced in
Miller should be expanded, but rather simply to decide
whether Miller’s “holding is retroactive to juvenile offenders
whose convictions and sentences were final when Miller was
decided.” 577 U.S. at 194, 136 S.Ct. 718. On the question of
what Miller required, Montgomery was clear: “A hearing
where youth and its attendant characteristics are considered
as sentencing factors is necessary to separate those juveniles
who may be sentenced to life without parole from those who
may not.” Id., at 210, 136 S.Ct. 718 (internal quotation marks
omitted). But a separate finding of permanent incorrigibility
“is not required.” Id., at 211, 136 S.Ct. 718.
141 S. Ct. at 1317–18 (emphasis added). Although Jones post-dates the Idaho Supreme
Court’s decision in Sarah’s case and therefore is not considered clearly established law
available to the Idaho Supreme Court in Sarah’s case, Jones demonstrates that Sarah’s
proposed construction of Miller calls for an extension, rather than a mere application, of
that case. The Court includes some citations to Jones in this Order for demonstrative
purposes only.
Drawing from Roper and Graham, the Court in Miller explained some of the
characteristics of juveniles that make them “constitutionally different from adults for
purposes of sentencing,” include:
• “diminished culpability and greater prospects for reform”;
• “lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and
heedless risk-taking”;
• “more vulnerab[ility] to negative influences and outside
pressures, including from their family and peers”;

MEMORANDUM DECISION AND ORDER - 17

• “limited control over their own environment and [a] lack
the ability to extricate themselves from horrific, crimeproducing settings”; and
• “a [] character [that] is not as well formed as an adult’s”,
“traits that are less fixed”, and “actions [that are] less
likely to be evidence of irretrievable depravity”.
567 U.S. at 471 (citations and punctuation omitted; alterations added).
Another categorical reason for exercising more care when considering LWOP
sentences for juvenile offenders is that “the distinctive attributes of youth diminish the
penological justifications” for imposing life without parole on juvenile offenders. Miller,
567 U.S. at 472. The rationale for “diminished” penological justifications includes the
following:
• “Because retribution relates to an offender’s
blameworthiness, the case for retribution is not as strong
with a minor as with an adult”;
• “The deterrence rationale likewise does not suffice,
because the same characteristics that render juveniles less
culpable than adults—their immaturity, recklessness, and
impetuosity—make them less likely to consider potential
punishment”;
• “The need for incapacitation is lessened, too, because
ordinary adolescent development diminishes the
likelihood that a juvenile offender forever will be a danger
to society”; and
• “Rehabilitation cannot justify the sentence, as life without
parole forswears altogether the rehabilitative ideal.”
Montgomery, 577 U.S. at 207-08 (citations and punctuation omitted).

MEMORANDUM DECISION AND ORDER - 18

However, a sentencing court need not address the particular Miller or Montgomery
factors in its discretionary decision to survive Eighth Amendment scrutiny, so long as
evidence of youthful characteristics was presented for the sentencing court’s
consideration. Though Montgomery provided many explicit recommendations regarding
youthful characteristics when it declared Miller a substantive rule, and Montgomery
concluded that LWOP sentences for juveniles should be the rare exception and not the
rule, its holding is nevertheless a limited one.
As recognized in United States v. Briones, 35 F.4th 1150 (9th Cir. 2021),
Montgomery went beyond simply addressing retroactivity of the mandatory LWOP
claim: “In dicta, Montgomery also appeared to extend Miller’s rule, suggesting that
LWOP is ‘an unconstitutional penalty for ... juvenile offenders whose crimes reflect the
transient immaturity of youth,’ i.e., ‘for all but ... those whose crimes reflect permanent
incorrigibility.’ Id. at 208–09, 136 S.Ct. 718.” 35 F.4th at 1153–54. Both the Supreme
Court in Jones and the Ninth Circuit in Briones agree that the substantive holding of
Miller mandates a state sentencing court to hold a hearing where “youth and its attendant
characteristics are considered as sentencing factors” and that the substantive holding is
not that a state sentencing court must make a separate or explicit finding of “permanent
incorrigibility.” 141 S.Ct. at 1317-18; 35 F.4th at 1153-54.
Reining in defendants who would read more into Montgomery than its limited
holding, the Jones Court summarized the substantive rule very simply: “Youth matters in
sentencing. And because youth matters, Miller held that a sentencer must have discretion
MEMORANDUM DECISION AND ORDER - 19

to consider youth before imposing a life-without-parole sentence, just as a capital
sentencer must have discretion to consider other mitigating factors before imposing a
death sentence.” 141 S. Ct. at 1316 (citations omitted). Jones also reiterated that
“permanent incorrigibility is not an eligibility criterion akin to sanity or a lack of
intellectual disability.” Id. at 1315.
ii.

Procedural Requirements

To the extent that Miller set forth procedures a court must follow before
sentencing a juvenile offender to LWOP, the requirements are few. The Miller Court
announced that its holding “mandates only that a sentencer follow a certain process—
considering an offender’s youth and attendant characteristics—before imposing a
particular penalty.” 567 U.S. at 483 (emphasis added). See Graham, 560 U.S. at 76 (“An
offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail
to take defendants’ youthfulness into account at all would be flawed.”). This Court
disagrees with Sarah that Miller’s discussion of discretionary versus mandatory
sentencing established a “procedure” when the Miller Court indicated that a sentencing
judge is required “to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at
480.
In Jones, the Court clarified that particular factual findings or—as Sarah would
define them, “procedures”—are not required, and the Court explained why in great detail:

MEMORANDUM DECISION AND ORDER - 20

[A]n on-the-record sentencing explanation with an implicit
finding of permanent incorrigibility is not dictated by any
historical or contemporary sentencing practice in the States.
To be sure, when a state judge imposes a sentence of
imprisonment, particularly a lengthy sentence, the judge often
will explain both the sentence and the judge’s evaluation of
any mitigating circumstances. But many States traditionally
have not legally required (and some States still do not legally
require) on-the-record explanations by the sentencer. See,
e.g., A. Campbell, Law of Sentencing § 10:5, pp. 473–480 (3d
ed. 2004) (hereinafter Campbell). Indeed, in some States, the
jury is the sentencer for certain kinds of crimes, and juries
typically do not supply sentencing explanations. See
generally King & Noble, Felony Jury Sentencing in Practice:
A Three-State Study, 57 Vand. L. Rev. 885 (2004). Even
when state law requires a sentencer to supply reasons, many
States do not impose a formulaic checklist of topics or a
magic-words requirement with respect to particular mitigating
circumstances. And appellate courts do not necessarily
reverse merely because the sentencer could have said more
about mitigating circumstances. See Campbell 477; 22A Cal.
Jur. 3d, Crim. Law: Posttrial Proceedings § 408, p. 234
(2017).
Those state practices matter here because, as the Court
explained in Montgomery, when “a new substantive rule of
constitutional law is established, this Court is careful to limit
the scope of any attendant procedural requirement to avoid
intruding more than necessary upon the States’ sovereign
administration of their criminal justice systems.” 577 U.S. at
211, 136 S.Ct. 718. So it is here. Because Montgomery directs
us to “avoid intruding more than necessary” upon the States,
ibid., and because a discretionary sentencing procedure
suffices to ensure individualized consideration of a
defendant’s youth, we should not now add still more
procedural requirements.
141 S. Ct. at 1321.

MEMORANDUM DECISION AND ORDER - 21

The Jones Court emphasized that discretion is the key to a constitutional
sentencing scheme: “In a case involving an individual who was under 18 when he or she
committed a homicide, a State’s discretionary sentencing system is both constitutionally
necessary and constitutionally sufficient.” 141 S. Ct. at 1313. Miller and Montgomery
both “definitively reject[ed] any requirement of a finding of permanent incorrigibility.”
Jones, 141 S.Ct. at 1322.
This Court now turns to the question of whether the state sentencing court met the
constitutional substantive and procedural requirements set forth in Miller and
Montgomery before sentencing Sarah to life without parole.
B. State Court Proceedings
The relevant state court record consists of three separate layers of adjudication: the
sentencing hearing in 2005, with Judge Barry Wood presiding; the successive postconviction action filed in 2012, with Judge G. Richard Bevan presiding; and the Idaho
Supreme Court’s appellate review, completed in 2017. Judge Bevan’s final decision was
issued after Miller (2012) and before Montgomery (2016), but he assumed for the purpose
of his discussion that Miller would be retroactive. State’s Lodging G-1, p. 252. The
retroactivity question was decided in Montgomery before the Idaho Supreme Court issued
its final decision in 2017. State’s Lodging H-8.
On successive post-conviction review, Judge Bevan concluded:
[T]he holding in Miller has no bearing on Johnson’s
situation. Miller held that mandatory fixed life sentences for
juveniles convicted of homicide violate the Eighth
MEMORANDUM DECISION AND ORDER - 22

Amendment. Idaho does not have a mandatory fixed life
sentencing scheme, for juveniles or adults. Johnson’s
sentence was discretionary.
...
However, assuming that Johnson’s interpretation of
Miller is correct, Johnson admits in her Successive Petition
that her youth was taken into account at sentencing.
State’s Lodging G-1, p. 251.
Judge Bevan did not hold an evidentiary hearing on Sarah’s Eighth Amendment
claim, but granted summary dismissal in favor of the State. Id., pp. 236-53. Judge Bevan
relied on the sentencing transcript for his summary dismissal decision.
The Court will now review portions of Judge Wood’s 2005 sentencing hearing
relevant to Judge Bevan’s decision on Sarah’s 2014 successive post-conviction Eighth
Amendment claim. Key to the Miller claim, Dr. Richard Worst, a psychiatrist, and Dr.
Craig Beaver, a neuropsychologist, both testified on behalf of Sarah at the sentencing
hearing. Dr. Worst’s testimony spans sixty-eight pages of the transcript. State’s Lodging
A-21, pp. 6279-6296, 6303-6321, 6324-6352. Dr. Beaver’s testimony is approximately
forty pages. Id., pp. 6367-6414.
Dr. Worst spent nine hours in personal evaluation sessions with Sarah. He
prepared a written forensic psychiatric evaluation, which was included in the Presentence
Investigation (PSI) report. State’s Lodging A-23. Dr. Worst noted that Sarah had been
depressed and had been taking Zoloft for two years before the crime. Sarah told Dr.
Worst that she had experienced conflict at home, especially with her mother. She

MEMORANDUM DECISION AND ORDER - 23

acknowledged having engaged in a physical altercation with her mother, where her
mother “put her on the floor.” Id., p. 9.
Dr. Worst noted Sarah had experienced conflict with her father the week before
the crime. They argued over her father going to her boyfriend Bruno’s house, threatening
Bruno, and telling Sarah her relationship with Bruno was over. Sarah admitted anger over
that incident, but otherwise said that her relationship with her father was very, very good.
She reported that her father slapped her only once, when she was being a smart aleck, but
denied that he was physically abusive to her. Id.
Dr. Worst found no evidence that Sarah had Antisocial Personality Disorder or
Conduct Disorder. Id. Dr. Worst diagnosed Sarah as having Major Depression and
Adjustment Disorder with mixed anxiety and depressed mood and possible mild
Attention Deficit Disorder of the inattentive type on Axis I of the Minnesota Multiphasic
Personality Index (MMPI), 4th Ed. Because Sarah had attempted suicide the year before
the crime, Dr. Worst classified Sarah’s depression as ongoing clinical depression. State’s
Lodging A-21, p. 6306. But, Dr. Worst testified, Sarah’s type of depression does not
generally predispose someone to commit violent crimes; it was not “psychotic
depression.” Id., pp. 6287-88.
Importantly, Dr. Worst diagnosed Sarah with dependent personality disorder with
self-defeating and avoidant personality traits on Axis II. State’s Lodging A-23, pg. 8.
When asked about this diagnosis made by Dr. Worst, Dr. Beaver explained that a
dependent personality means “a personality that is relatively immature and is
MEMORANDUM DECISION AND ORDER - 24

undeveloped.” State’s Lodging A-21, p. 6402. A person with dependent personality order
typically is “not very likely to plan, originate or execute their own activities or plans; but
they are easily led and directed by other people.” Id. However, “because of their need to
be accepted and attached to another person, they’re willing to engage in behaviors that
they may find reprehensible, but are needed to maintain that dependency.” Id.
Dr. Worst also testified during the sentencing hearing that “full development of
the frontal cortex and the higher centers of the brain generally isn’t reached until about
18.” Id., p. 6291. He noted that the American Psychiatric Association, the American
Psychological Association, the American Academy of Adolescent Medicine, and the
American Academy of Psychiatry have voiced opposition to the death penalty for
juveniles based upon the scientific understanding of brain development over the lifespan.
Id., pp. 6289-92.
Particularly, as to Sarah, Dr. Worst concluded that, “given no history of substantial
prior antisocial conduct, and with a history of reasonably good school performance, good
work performance, good interpersonal relationships, at least until the turmoil of her
adolescence, she is rehabilitative.” State’s Lodging A-23, pg. 10.
After the prosecutor cross-examined Dr. Worst, Judge Wood questioned Dr.
Worst. Judge Wood asked about a plan for rehabilitation, given that Sarah had not
admitted committing the crime. Dr. Worst said Sarah’s decision to refrain from admitting
she committed the crime made it very hard for him to form an opinion about a plan for
rehabilitation. “[O]ther than to say treat her depression, treat her losses, and that’s about
MEMORANDUM DECISION AND ORDER - 25

all I can do,” he said. State’s Lodging A-21, p. 6305. He could make only a “kind of
educated guess that at some point, she will come to grips with” having committed the
crime, and that could be worked on in psychotherapy.” Id., p. 6306. He clarified on crossexamination, “Yes, it’s impossible to provide a rehabilitation plan related to the crime
when I just am not able to get enough data about her state of mind, et cetera, at the time
of the crime.” Id., p. 6317.
On recross examination, Dr. Worst clarified that, while he was not able to
determine Sarah’s rehabilitative potential, he based his opinion that she could be
rehabilitated on “the data … collected from [his] face-to-face interview, her intelligence,
her ability to do abstract thinking, the fact that she’s not psychotic … [or] belligerent.” Id.
at 6320-21. Dr. Worst also stated: “Her past history prior to the crime looks like that of a
pretty darn normal girl. She was very positive about both of her parents in all of her
discussions with me. She did appear to have some good family background.” Id., p. 6321.
Judge Wood specifically asked Dr. Worst about Sarah’s honesty and tendency to
manipulate facts; for example, she said that her parents’ bedroom door was closed, but
both of her own experts say Sarah’s and her parents’ doors had to have been wide open,
given the blood spatter. Id. at 6306-07. Dr. Worst disagreed with Judge Wood’s
suggestion and opined that he saw areas where she was not manipulative or evasive. He
provided examples of instances where Sarah was candid about other difficult topics, like
her sexuality and her relationship with Bruno. Id., pp. 6306-6310.

MEMORANDUM DECISION AND ORDER - 26

Dr. Worst also noted that Sarah was relying on her lawyer’s advice in not
discussing the crime. Id., p. 6309. Judge Wood “recognized” and “honored” Sarah’s
“privilege” to remain silent under the Fifth Amendment, see id., pp. 6463-64, and
assessed her character based on what she did say to others, as found in the record. For
example, Judge Wood was very concerned that Sarah told family members that she did
not commit the crime and said that “the true story would come out in the end,” when, in
the end, the evidence clearly pointed to herself as perpetrator. Id., pp. 6306-6314. The
trial judge saw this type of dishonesty as an ingrained characteristic of Sarah’s
personality. Dr. Worst did not have an answer for this observation, and said it would be
“psychiatric speculation” to try to do more without any data to support his answer. Id.
Dr. Beaver testified about the current scientific understanding of brain
development. Those areas of the brain associated with high-level decision making,
organization, problem solving, inhibitory control, and higher-level adult reasoning and
functioning do not fully develop until sometime in the mid-twenties, when development
is “pretty much complete.” State’s Lodging A-21, pp. 6370-71. After that, people
“continue to learn, grow and develop” until death. Id. at 6372. Under this pattern, it
would be unlikely that a 16-year-old’s brain would be fully developed, he opined. Id. at
6373.
Dr. Beaver explained that, in sixteen-year-olds, problem-solving activity takes
place in the mid-brain or posterior portion of the brain, while in the mid-twenties,
problem-solving takes place in the frontal cortex. Id. at 6374. The progression allows
MEMORANDUM DECISION AND ORDER - 27

better problem-solving by improving the quality of reasoning in the following ways: “(1)
[t]he ability to be more abstract, not be so immediate; (2) [t]o be more objective
sometimes”; (3) [t]o weigh pluses and minuses more thoroughly”; and (4) to understand
“the longer-term implications of what your actions may be, for example, instead of the
immediate consequences.” Id., pp. 6375-76.
Dr. Beaver testified that he saw no instances of previous outbursts of violence in
Sarah’s history. Id., p. 6391. Dr. Beaver testified that Sarah had “rehabilitation potential,”
even if she never admitted guilt, given the following: (1) in a study of 100 instances when
a child killed a parent, the recidivism rates were zero; (2) Sarah did not have a mental
health disorder; (3) she did not have a drug or alcohol dependency problem; (4) she was
of average intelligence; and (5) she did not have a prior history of violence or criminal
behavior. Id., pp. 6396, 6399.
Judge Wood also questioned Dr. Beaver after cross-examination was completed.
Dr. Beaver did not directly answer Judge Wood’s question about whether the family
members who testified against Sarah had unwarranted fear or might be in danger if Sarah
were to be released from prison. Id., pp. 6412-13. He said the only way he could answer
that question was to rely on research, which shows that people who commit murder have
one of the best track records for being successful once they return to society. Id., p. 6413.
As a matter of probability, after a twenty-five-year sentence (by about age 43), Sarah
would not be a substantial risk to reoffend if released. Id., pp. 6413-14.

MEMORANDUM DECISION AND ORDER - 28

Dr. Beaver also testified on cross-examination:
Q. (Mr. Thomas):

A.

I’m asking you, if you’re given two
competing interests, one protection of
society, versus rehabilitation of an
offender, obviously, the same person,
which do you find more compelling and
more important?
Well, fortunately, I’m not a judge and I
don’t have to make those decisions. I
think both need to be weighed and
considered.

Id., p. 6405.
Other testimony in the record reflected that Sarah generally exhibited mature
behaviors and decisionmaking: Sarah received good grades in school. She played on
sports teams. She was on the debate team. See State’s Lodging A-22 (presentence
investigation report). Witness Patricia Adler testified that Sarah had asked Adler to
sponsor her so that she could be confirmed into the Catholic church. State’s Lodging A21, p. 6423. “Sarah at 16 made that commitment to be confirmed into the church, which
took her going to classes, going to church every Sunday, making sure that she went to
every class. And not every 16-year-old will make that commitment, but she did.” Id.
On June 30, 2005, after considering expert and lay witness testimony at the
sentencing hearing and entering an extensive explanation of the record, Judge Wood
sentenced Sarah to two concurrent fixed life terms, with a firearm enhancement of 15
years. Id., pp. 6500-01.

MEMORANDUM DECISION AND ORDER - 29

After the United States Supreme Court changed the landscape of juvenile LWOP
sentencing in June 2012, Sarah amended her April 2012 successive post-conviction
petition in 2014 to challenge her LWOP sentences, among other claims. As noted above,
Judge Bevan reviewed Judge Wood’s sentencing proceedings and summarily dismissed
the successive post-conviction petition in 2014. State’s Lodgings G-1 to G-3.
Sarah appealed the denial of her successive post-conviction petition. In 2017, the
Idaho Supreme Court rejected Sarah’s argument that the state district court violated her
Eighth Amendment rights by sentencing her “without adequate consideration of
mitigation arguments based on youth and without a finding that she was irreparably
corrupt.” State’s Lodging H-8, p. 17. The Idaho Supreme Court noted that two experts
testified at the sentencing hearing about (1) the developmental state of an adolescent’s
brain compared to an adult; (2) how youth are more prone to impulsivity and more likely
to be able to be rehabilitated; and (3) how Sarah herself could be rehabilitated.
The appellate court recognized that the sentencing court “explicitly noted that it
had heard and considered the evidence presented on Johnson’s youth” and then “spent
considerable time discussing the reasons why it was imposing life without parole.” Id.
The Idaho Supreme Court gave examples of how the state district court referenced the
testimony about Sarah’s youth in its 42-page sentencing explanation, including: “‘I also
want to say to everyone here that I have heard what you have said. I have listened
attentively’; ‘I would also say to you that it’s important to me, in this analysis, to consider
the totality of all the facts and circumstances, and not any one piece in isolation’; ‘I
MEMORANDUM DECISION AND ORDER - 30

recognize that some of the psychological evidence presented here at this sentencing
hearing was to the effect that adolescents can act impulsively ...’; ‘on the mitigating side,
there is in fact your age’; [and] ‘I don't think it’s a product of your age.’” Id.
The Idaho Supreme Court specifically concluded that, “[a]lthough Miller and
Montgomery had not been decided at the time of the sentencing hearing, and therefore the
terms of ‘irreparably corrupt’ and ‘transient immaturity’ were not in the court’s lexicon at
that time, the court clearly considered Johnson’s youth and all its attendant characteristics
and determined, in light of the heinous nature of the crime, that Johnson, despite her
youth, deserved life without parole.” Id., pp. 17-18. Therefore, the Idaho Supreme Court
rejected Sarah’s Eighth Amendment cruel and unusual punishment claim.
C. Discussion
i.

Procedural Analysis

This Court first reviews Sarah’s argument that the state district court did not
perform a proper Eighth Amendment procedural analysis before sentencing her. She
argues that, because Judge Wood stated only that he “listened attentively” to the extended
analyses of two mental health professionals who testified in Sarah’s favor at the
sentencing hearing, he did not perform the proper procedural analysis. However, as noted
above, the holdings of Miller and Montgomery do not require a sentencing judge to make
any particular findings or explain why testimony about youthful characteristics, either in
general or in particular, was rejected.

MEMORANDUM DECISION AND ORDER - 31

Sarah is making the same argument made in Jones, that special words or findings
are required, which has been rejected by the United States Supreme Court in three
successive opinions. To make this point clear, the Jones Court explained that, if evidence
of youthful characteristics was presented to the sentencing court, that necessarily means
the sentencing court considered it in determining the youthful offender’s sentence:
First, and most fundamentally, an on-the-record sentencing
explanation is not necessary to ensure that a sentencer
considers a defendant’s youth. Jones’s argument to the
contrary rests on the assumption that meaningful daylight
exists between (i) a sentencer’s discretion to consider youth,
and (ii) the sentencer’s actual consideration of youth. But if
the sentencer has discretion to consider the defendant’s youth,
the sentencer necessarily will consider the defendant’s youth,
especially if defense counsel advances an argument based on
the defendant’s youth. Faced with a convicted murderer who
was under 18 at the time of the offense and with defense
arguments focused on the defendant’s youth, it would be all
but impossible for a sentencer to avoid considering that
mitigating factor.
It is true that one sentencer may weigh the defendant’s youth
differently than another sentencer or an appellate court would,
given the mix of all the facts and circumstances in a specific
case. Some sentencers may decide that a defendant’s youth
supports a sentence less than life without parole. Other
sentencers presented with the same facts might decide that
life without parole remains appropriate despite the
defendant’s youth. But the key point remains that, in a case
involving a murderer under 18, a sentencer cannot avoid
considering the defendant’s youth if the sentencer has
discretion to consider that mitigating factor.
141 S.Ct. at 1319-20.

MEMORANDUM DECISION AND ORDER - 32

The record here reflects that the minimal procedural requirements of Miller were
met in the 2005 sentencing hearing. Sarah had an individualized evidentiary hearing,
where experts provided general scientific information and data about the characteristics
of youth mentioned in Roper, Graham, Miller, and Montgomery. The experts also
testified about their particular evaluations of Sarah and her personal characteristics. Both
experts opined that Sarah had a relatively high potential for rehabilitation. Some of their
testimony, however, was not favorable to Sarah, and Dr. Beaver particularly deferred to
the sentencing court on the issue of whether protection of society or rehabilitative
potential was more important. The sentencing court acted out of discretion and not
pursuant to a mandatory sentencing scheme. Therefore, the 2005 sentencing hearing
satisfied the Eighth Amendment’s procedural requirements.
ii.

Substantive Analysis

This Court concludes that the substantive constitutional protections were met in
the Idaho courts’ review of Sarah’s sentences. Judge Wood acted under a state sentencing
scheme that did not require a mandatory LWOP sentence. Judge Wood’s explanation
made it clear that he considered and rejected the expert testimony as it related to Sarah’s
youth before exercising his discretion to impose a LWOP sentence. A trial court must
consider the evidence of youth, but it need not accept it as a mitigating factor in any
particular case, which is the definition of a “discretionary” decision. The Miller
requirement is met when a sentencing transcript reflects that an evidentiary presentation

MEMORANDUM DECISION AND ORDER - 33

was made of how youth affects problem-solving and the particular youthful
characteristics of the juvenile defendant.
For example, in Jessup v. Shinn, 31 F.4th 1262 (9th Cir. 2022), Jessup was 17
when he committed murder for which he received a LWOP sentence. Jessup’s sentencing
hearing consisted of the same type of evidence as in Sarah’s case:
At the sentencing hearing, the parties debated whether
Petitioner warranted a sentence of life without the possibility
of parole or a sentence of life with the possibility of parole
after 25 years. Petitioner’s lawyer presented testimony by a
psychologist who emphasized Petitioner’s age and age-related
characteristics, including Petitioner’s emotional age of 12 or
13. Petitioner’s age was not a cursory or tangential issue. The
psychologist has examined numerous young people, and his
24-page, single-spaced report contextualized his findings in
comparison to other youthful offenders. The report described
Petitioner as “immature” with “regard to impulse control.”
The psychologist explained why Petitioner was slow to
mature and why he had “a functional social level of about 2/3
[his] chronological age.” It also was noted that, in general,
“[t]he incidence of violence is highest in the age group 15–
24” and that Petitioner “can be no younger than 43 at [the]
time of release.” Addressing specifically the prospect for a
young person’s maturation, the report concluded [in part]:
A broadening of temporal awareness tends to
accompany advancement into adulthood, and
for this reason, I believe that [Petitioner’s] risk
of violent offense will gradually diminish with
maturation – particularly after age 25.
. . .
After much deliberation and weighing of mitigating and
aggravating factors as to the murder count, the judge
sentenced Petitioner to natural life:

MEMORANDUM DECISION AND ORDER - 34

So when my choice is between a chance that
you will be paroled and certainty of knowing
that you will be in prison for the rest of your
life, the choice becomes clear to me. I really do
believe that you forfeited your right to walk as a
free member of society, again, because of the
heinousness of the crimes and cruelty that you
imposed on Mr. Watkins.
31 F.4th at 1264. On federal habeas corpus review, the district court denied Jessup relief.
The United States Court of Appeals for the Ninth Circuit affirmed denial of habeas
corpus relief to Jessup, reasoning that “Miller addressed situations in which the
sentencing authority imposed a sentence of life without parole automatically, with no
individualized sentencing considerations whatsoever,” but “given the sentencing judge’s
extensive deliberation here as to whether [Jessup] warranted a possibility of release, the
state post-conviction court reasonably distinguished Miller.” Id. at 1267.
Here, Sarah’s argument is speculative. A review of the record shows that Judge
Wood considered everything and rejected some evidence. Judge Wood introduced his
sentencing decision by saying he took into consideration “the width and depth and
breadth” of the record. State’s Lodging A-21, pp. 6464-65. He was not required to say in
which order he conducted his analysis: everything means everything. He particularly
articulated that, although various witnesses invited him to pick out “different pieces of
evidence and single facts” and “focus primarily on that,” he wanted to be clear that his
decision was based on “the totality of the whole thing.” Id. at 6465. This introduction,
together with the specific statements the Idaho Supreme Court singled out showing that

MEMORANDUM DECISION AND ORDER - 35

the sentencing judge considered all of the evidence in the record, including youthful
characteristics and Sarah’s youth in particular. See State’s Lodging H-8.
Here, Sarah is attempting to press a requirement upon the sentencing court that
simply is not found in Miller or Montgomery. She argues that Judge Wood did not
consider youthful characteristics before considering the totality of evidence simply
because he did not say so. In fact, Judge Wood did more than what the Eighth
Amendment requires, as a presentation of expert evidence of youthful characteristics
necessarily means the sentencing court considered it in determining the youthful
offender’s sentence. See Jones, 141 S.Ct. at 1319-20.
Sarah similarly takes issue with the fact that no one said that youthful differences
counsel against LWOP. But, the two expert witnesses clearly explained how, in their
opinions, youthful characteristics “counseled against” a LWOP sentence, though they did
not use that exact phrase, nor did they need to. Nor was Judge Wood required to say the
words “counseled against” or explain how he particularly considered the “youth
counseling against LWOP” factor and why it rejected that mitigation factor in Sarah’s
case.
In his analysis of youthful characteristics, Judge Wood stated that “on the
mitigating side, there is in fact your age. At the time you committed these crimes, you
were 16 years of age.” State’s Lodging A-21, p. 6477. Age is a mitigating factor; it is not
a disqualifier but factor. Different ages of juveniles may call for different considerations.
Cognizant that the Miller defendants were only 14, the United States Supreme Court
MEMORANDUM DECISION AND ORDER - 36

condemned mandatory sentencing schemes where individual ages could not be
considered: “Under these schemes, every juvenile will receive the same sentence as every
other—the 17–year–old and the 14–year–old.” 567 U.S. at 465, 476–77. Neither Miller
nor Jones suggested or held that the age of adulthood is now considered the mid-twenties,
but each simply reiterated that maturity for sentencing purposes is not to be determined as
a matter of law, but upon the facts of each case.
Reviewing other characteristics related to youth, Judge Wood found no evidence
in the record that Sarah committed her crimes as a result of family or peer pressure;
rather, the evidence showed she concocted and carried out the plan by herself. It was
clear from the evidence that her boyfriend, Bruno, had no knowledge of Sarah’s plan and
that he distanced himself from her when he found out what she had done. See Dkt. 30, p.
12.
Judge Wood noted that Sarah had no history of prior juvenile delinquency. State’s
Lodging A-21, p. 6475. He also found that Sarah had no history of mental illness or head
injury, and there was no evidence of “any cognitive barrier that prevented her from
understanding what she was doing.” Id., p. 6471. Dr. Worst testified that the type of
ongoing depression that Sarah had would not have led her to commit the crimes. State’s
Lodging A-21, pp. 6287-88.
Judge Wood considered Sarah’s upbringing and home life, just as the Miller Court
distinguished between “the child from a stable household and the child from a chaotic
and abusive one.” 567 U.S. at 476–77. In Sarah’s case, Judge Wood distinguished
MEMORANDUM DECISION AND ORDER - 37

Sarah’s home life from that of eight recent criminal defendants’ sentencing hearings. The
court noted: “probably six out of the eight … the common themes coming through those
… are the defendant comes from a broken, divorced home; … dropped out of school …;
[o]n methamphetamine and/or drugs, other heavy drugs at an early age; [u]sing alcohol at
an early age; [v]irtually no parental or family support; and few, if any, material items.”
Id. at 6490.
Judge Wood then told Sarah:
Your situation is in stark contrast to that. Your parents had
jobs. You had stability. You lived in this community all your
life. You were on your way to a good education. You were
involved in school athletics. All of the evidence, including
your statement, is your parents came to the - each, virtually
each and every one of your events. In fact, you wrote in your
PSI, if my memory serves me, something to the effect that
your parents didn’t have that great of a marriage, because
they spent all their time supporting Matt and you.
And so what I’m saying is that the – it’s just the opposite of
what we normally see, I normally see with kids in trouble.
That isn’t the circumstance here. You had it all. You had a
nice house, nice family, nice school, lots of support, a car,
freedom. It’s confusing. It really is.
Id. at 6491-92.
While the Miller Court found juveniles distinct from adults because of their
“limited control over their own environment” and an inability to “extricate themselves
from horrific, crime-producing scenes,” 567 U.S. at 467, Judge Wood, in contrast, found
that Sarah had many resources in her life:

MEMORANDUM DECISION AND ORDER - 38

In the final analysis, Miss Johnson, you had lots of
options. You had your godmother, you had neighbors, you
had a brother, you had Mel Speegle, you had school teachers,
you had schoolmates, you had Bruno, you had Bruno’s
family. You had a car. You had all kinds of ways to not go
down this road.
Yet, you elected the worst of all possible courses of
conduct. And it’s the most final, the most devastating, and the
harshest option you chose when you had nearly complete
freedom to choose any of the others.
State’s Lodging A-21, pp. 6497-98.
In addition, there was no evidence of physical or sexual abuse in Sarah’s home
that might have precipitated the killings. Id. at 6468. Judge Wood stated that he found no
“legitimate or rational provocation” in Sarah’s relationship with her parents as mitigation.
The record reflects that Sarah did not get along with her mother and said she hated her
mother. There was evidence that Sarah was close to her father, but very angry with him
over ending her relationship with Bruno.
Judge Wood also considered whether Sarah acted out of youthful impulsivity:
“While I recognize that some of the psychological
evidence presented here at this sentencing hearing was to the
effect that adolescents can act impulsively, the evidence in
this case is not impulsive evidence.
Id., p. 6473.Judge Wood pointed out that Sarah’s scheme was well-planned:
Three full days elapsed from the time of the
confrontation at Bruno’s to the date of the killings; she spent
many hours in the guest house where the murder weapon,
ammunition, and other weapons and ammunition were
located.

MEMORANDUM DECISION AND ORDER - 39

Id. at 6479.
Judge Wood highlighted other evidence supporting the lack of impulsivity in
Sarah’s crime:
With respect to the preparation involved, the evidence here is
that you located this high-powered rifle and bullets in the
guest house. You took the scope off of the rifle.
You retrieved a Latex glove from a first aid kit. You secured
your mother’s driving gloves from the Suburban. You
planned the placement of the butcher knives which came from
two different places in the kitchen. You had to bring the rifle
and ammunition to the main house from the guest house,
together with other firearms.
You knew that Mel Speegle, because your parents and you
had had dinner with Mel Speegle, you knew from the week
before, the Thursday or so before that Mel Speegle was not
going to be there at that guest house, wasn’t going to return
until Tuesday following Labor Day weekend.
And you waited until the appropriate time, in your mind, your
mother was asleep in the bed. The evidence is that this
comforter or covers were pulled over her head. And you shot
her in the head in the near darkness.
Id. at 6479-80.
In a similar case, McGilberry v. State, No. 2017-CT-00716-SCT, 292 So. 3d 199
(Miss. Jan. 23, 2020), the defendant was 17 when he murdered his family, using baseball
bats as weapons. The sentencing trial judge “considered evidence of McGilberry’s
chronological age and immaturity but found his crime was not the result of childish
impetuosity.” Id. at 209.

MEMORANDUM DECISION AND ORDER - 40

In Sarah’s case, Judge Wood also considered Sarah’s degree of planning as
evidence of a well-developed dangerous character. Judge Wood observed: “There’s also
the degree of planning and preparation and execution that went into these crimes … [that]
says volumes about your character.” Id. at 6476.
Similarly, in McGilberry, the Court reasoned:
[McGilberry] knew what would happen if all went according
to plan, as evidenced by hiding the bats so he could walk
through the house, his attempt to clean the scene and hide the
weapons, and his kidnapping alibi. The court found these
actions to be the product of entrenched personality traits and
not immaturity.
292 So. 3d at 203–04.
In addition, the fact that the planning was for the purpose of accomplishing a
particularly heinous crime also factored into Judge Wood’s analysis of Sarah’s ingrained
dangerous character:
I can only presume and assume that one who goes and
procures a high-powered rifle, hunting rifle, and shoots one
victim in the head, and then moves deliberately to another
room and shoots the other victim, would have to contemplate
that the conduct would result in significant harm.
This is particularly true, given the amount of time that
you had taken to prepare for this event, and the fact that you
essentially ambushed these people. The first one was asleep
in bed, and the second was essentially ambushed coming out
of the shower.
But again, the instrumentality used and the method in
which it was used, you clearly had to contemplate that your
conduct would cause great harm.

MEMORANDUM DECISION AND ORDER - 41

State’s Lodging A-21, pp. 6471-72.
Likewise, the sentencing court in McGilberry distinguished the premeditated and
planned murder of the McGilberry family from the facts in Miller:
[T]he trial court considered the circumstances of the murders
and McGilberry’s participation. In stark contrast to Miller, the
murders here were brutal and premeditated. In Miller, the
Supreme Court emphasized that one of the juvenile offenders
had been high on drugs and alcohol consumed with the adult
victim and the other did not fire the fatal bullet or intend
anyone’s death. Miller, 567 U.S. at 478-79, 132 S.Ct. 2455.
But McGilberry was the ringleader in both the murderous plot
and its execution. He planned his crime a week ahead. And
when his friend refused to help, he found a younger, more
amenable accomplice. McGilberry had a plan to hide the
murder weapons before and after the murders. He wore
gloves. And he disposed of evidence on the way back to his
house.
Although, “[w]hen compared to an adult murderer, a juvenile
offender who did not kill or intend to kill has a twice
diminished moral culpability,” here, there was no doubt
McGilberry’s primary intent was to kill.
292 So. 3d at 203-04.
In his analysis, Judge Wood noted that Sarah’s character by the age of 16
demonstrated the following:
There is evidence supported by your family members
here, as well, with respect to your character that you’re not
trying to truly seek rehabilitation. What you’re trying to do is
just get off.
They testify, at least in my summary, that you view yourself
as the center of the universe, sort of - so to speak, and you go
to unimaginable extremes to get what you want. It’s all about
Sarah, and it’s all about Sarah now.
MEMORANDUM DECISION AND ORDER - 42

State’s Lodging A-21, pp. 6490. In addition, Judge Wood noted, “Linda Vavold did
testify that you manipulate facts to suit your own needs. I think there’s strong evidence to
support that assertion.” Id. at 6492.
Dr. Worst’s diagnosis of dependent personality disorder and Dr. Beaver’s
description of how a person with that diagnosis functions also support Judge Wood’s
character analysis. Dr. Beaver testified that, especially if involved with the wrong
influences and if her relationships were in jeopardy, Sarah would go along with anything
that someone else suggested to keep her relationships intact. Here, the evidence showed
that, even beyond the classic profile of a dependent personality, Sarah had the
wherewithal to make and carry out such plans on her own when her romantic relationship
with Bruno was threatened.
Judge Wood believed Sarah might use violence against her family or others if she
was ever released from prison. Judge Wood stated: “The family members here have
testified, in one form or another, that they are fearful of retribution if and when you get
out of prison.” Id., p. 6467. Judge Wood also noted that “Malinda Gonzales testified that
you told her that you were going to beat up Bruno when you got out; and if he died in the
process, quote, oh, well, end quote.” Id., p. 6490.
Judge Wood noted that Sarah was a consistent liar—a major character flaw
developed and exercised by a person only two years from society’s first mark of
adulthood. The record reflects that Sarah concocted many lies to protect herself, without

MEMORANDUM DECISION AND ORDER - 43

regard to how they harmed others. For example, she had tried to pass blame for the
murders on to Janet Sylten and Christopher Hill when there was no evidence of motive,
without regard to the damage such allegations might cause in their lives.
Judge Wood relied on Sarah’s statements to other witnesses found throughout the
record to “provide [him] with really a [good] look into your mind at different points.”
State’s Lodging A-21, p. 6463. He observed:
There’s also significant evidence relative to your lack
of truthfulness. Other ideas about your character is this nail
tech lady who came and testified. She had no part of this. You
went to see her well after these events. And you told that nail
tech lady, who was a good witness … things such as your
mother’s a doctor, your dad owns the landscape company,
you have a vacation home in California, you live next door to
Bruce Willis, Bruno owns a restaurant.
I think Dr. Worst is right in the sense that you have this
distorted view of yourself and reality, and the truth escapes
you, frankly. And I don’t think it’s a product of your age. I
just think it’s a product of your makeup that you find the fact
of being truthful difficult to get ahold of.
Id., p. 6489.
Judge Wood particularly questioned Dr. Worst about the dishonesty factor.
However, Dr. Worst’s testimony offered little to aid the judge on this point. Id., pp. 63066310.
In the end, Judge Wood had to choose between immature characteristics that Sarah
might grow out of or consistent character flaws that he believed were a significant risk to
society. Judge Wood chose the latter. Even though it is not necessary, there is enough in

MEMORANDUM DECISION AND ORDER - 44

the record to equate Judge Wood’s analysis and decisionmaking as to character with the
concept of “permanent incorrigibility.”
During his introduction, Judge Wood discussed four goals and objectives a court
must take into consideration in crafting a sentence: protection of society (which is “first
and foremost…beyond any doubt, the primary factor in formulating a sentence”),
deterrence (“specific to [the defendant] and general to the community”), retribution, and
rehabilitation. Id. at 6460. Nothing in Miller, Montgomery, or Jones counsels that a
sentencing court is required to abandon these societal objectives of a criminal sentence
simply because the defendant is a juvenile. Rather, the sentencing court considers
whether or how they apply based on the youthful characteristics of the particular
defendant and the facts of the particular crime.
As to protection of society, Judge Wood found and concluded: “Given your
personality diagnosis of a dependent personality by Dr. Worst, the lack of provocation,
lack of any real demonstrated remorse, denial in the face of overwhelming evidence to
the contrary, to me all indicate that the likelihood of commission of another serious crime
is in fact reasonably possible. It may well be probable.” Id. at 6476. In his overall
consideration of the evidence, Judge Wood determined: “The protection of society
question … outweighs, in my view, the individual needs of the defendant.” Id. at 6468.
He continued, “And so in the final analysis in my mind, given no reasonable explanation
for the contrary, I have to come down on the side of protection of society in this risk
analysis…. [T]he risk to society outweighs your individual needs and wants.” Id. at 6499.
MEMORANDUM DECISION AND ORDER - 45

Judge Wood also said: “I will find and will state, in my opinion, that general
deterrence certainly has some effect in regard to this kind of case, the nature of these
offenses.” Id. at 6470. Judge Wood reasoned:
As to general deterrence, this -- the community and people in
this state have to understand, and the kids in this state have to
understand … when they get grounded by their parents when
they refuse to follow family rules, when the parents are
simply trying to protect them from an improper, illegal
relationship, kids can’t just go kill parents. We would have
absolute disarray in our society if that was sanctioned
behavior.
Id., pp. 6499-6500.
On habeas corpus review, Sarah argues that this comment by Judge Wood is
inconsistent with Miller’s directives:
Here the sentencing court did exactly what the Supreme Court
cautioned against and forbade: it allowed the nature of the
crime to overpower the mitigation arguments based on youth.
The sentencing court determined that Sarah was more
deserving of the harshest possible penalty because she was a
child and because it found that children killing parents cannot
be tolerated and social chaos might result from a lesser
penalty. Had Sarah been an adult who killed her parents, the
court would have, by its reasoning, given her a lesser
sentence because adult children who kill their parents do not
threaten the social fabric as seriously as juveniles who kill
their parents do. This failure to properly consider Sarah’s
youth violated Miller and the Eighth Amendment.
Dkt. 35, p. 12.
While Sarah does not specifically reference Montgomery’s deterrence discussion,
this Court begins its analysis there. The Montgomery Court mentioned in dicta that a

MEMORANDUM DECISION AND ORDER - 46

deterrence rationale does not support a LWOP sentence, “because the same
characteristics that render juveniles less culpable than adults—their immaturity,
recklessness, and impetuosity—make them less likely to consider potential punishment.”
577 U.S. at 207-08. This statement can be traced back to Atkins v. Virginia, 536 U.S. 304
(2002), where the Supreme Court concluded that applying the deterrence principle to
“mentally retarded offenders” would be ineffectual. It would not deter particular
offenders from committing future crimes, because these offenders could not control their
conduct based on such reasoning. Nor would it deter potential offenders who were not
mentally retarded, since such a rule exempting only the mentally retarded from capital
punishment would not apply to anyone else. Id. at 305. The Atkins reasoning, repeated in
every juvenile case through Montgomery, is not a good fit for these particular
circumstances, where Judge Wood wanted to warn the community that, when a child
executes an elaborate plan to kill one’s parents because the child disagrees with
discipline, that plan will be met with harsh punishment, where appropriate. It is not
necessarily true that Sarah’s harsh sentence would have no deterrent effect on Idaho
teenagers nearing legal adulthood who are generally mature, careful, and calculating.
As to particular deterrence for Sarah herself, Judge Wood said:
[I]mprisonment will provide appropriate punishment and
deterrent to you. All of the evidence supports this finding.
There is no evidence to the contrary. Clearly, if you’re
incarcerated, you cannot hurt anyone else.

MEMORANDUM DECISION AND ORDER - 47

State’s Lodging A-21, p. 6470. This reasoning goes hand-in-hand with Judge Wood’s
protection-of-society analysis. Based on the relevant facts, Judge Wood determined that
Sarah was too great a risk to release from custody in the future.
Judge Wood implied that, in some instances, a child who kills a parent may have
had a credible defense. But, in Sarah’s case, he found:
Part of the notion here, to me at least, is that society cannot
tolerate and will not tolerate a child rebelling against parents
and killing them, the very people who in this circumstance
were trying to protect you. And, clearly, absent any
justification or excuse. That’s precisely what happened here.
Id., pp. 6469-70 (emphasis added). Judge Wood also stated that deterrence would not
have an effect if the deaths resulted from a crime of passion. Id., p. 6470. But he did “find
and … state that general deterrence certainly has some effect in regard to this kind of
case, the nature of these offenses.” Id.
The Court disagrees with Sarah’s argument that Judge Wood’s particular
discussion of deterrence of parricide is the equivalent of a pronouncement that he
disregarded the characteristics of youth in general and of Sarah in particular in crafting
her sentence. Judge Wood’s deterrence discussion based upon the child-parent
relationship and how that might affect societal structure in the community is but one layer
of consideration that went into the sentencing analysis. As Dr. Beaver noted, the duty of a
sentencing court is to consider more than simply youthful characteristics and the
defendant’s interests, but also to consider the effect of the sentence on the community.
Id., p. 6405. Judge Wood carefully reviewed youthful characteristics and found Sarah to
MEMORANDUM DECISION AND ORDER - 48

be on the high-functioning side of youthful offenders and on the dangerous side of all
offenders.
Next, Sarah takes issue with Judge Wood’s statement that:
I think Dr. Worst is right in the sense that you have this
distorted view of yourself and reality, and the truth escapes
you, frankly. And I don’t think it’s a product of your age. I
just think it’s a product of your makeup that you find the fact
of being truthful difficult to get a hold of.
Id., p. 6489.
Sarah argues that this comment illustrates the court’s lack of understanding
regarding the nature of youth. In her view, the court should not have considered Sarah’s
“‘nature’ as if it were “an immutable and unchangeable quality.” Sarah asserts that Eighth
Amendment juvenile offender cases require the sentencing court to take the opposite
view—it must consider that a child’s character is not as well formed as an adult’s
character, which means that Sarah’s traits were less fixed and her actions less likely to be
evidence of irretrievable depravity, citing Montgomery. See 577 U.S. at 207.
This argument disregards Montgomery’s recognition that, in the rare instance
when a juvenile offender commits a crime that “reflect[s] permanent incorrigibility,”
LWOP is a constitutionally appropriate sentence. 577 U.S. at 209. That is, Montgomery
recognizes both that a child’s nature or character may become immutable before
adulthood and that the child’s particular crime can be an indicator of permanent
incorrigibility. Here, the sentencing court pointed to Sarah’s characteristics of widespread
dishonesty and placing herself above others at any cost, her dependent personality
MEMORANDUM DECISION AND ORDER - 49

disorder that endangered the community, and the depth of the incredibly harmful
planning and execution of the crimes as sufficient evidence that she was that rare juvenile
who deserved a life sentence with no opportunity for parole.
Sarah also proposes additional procedural protections for Idaho’s sentencing
courts, desiring a requirement that a sentencing court follow a certain sequence in its
analysis and articulate certain findings. She claims that, in every case, the sentencing
court must first consider how children are different, as explained by the Supreme Court,
and, second, consider how those differences counsel against a fixed life sentence in the
manner established by the Supreme Court, and third, consider the totality of the evidence.
Dkt. 35, p. 10. The Constitution does not demand articulation of these factors or
consideration of them in any particular sequence (though the suggested sequence is
logical). Regardless of the wisdom and desirability of such protections for youthful
offenders, the Constitution requires little in this area because federal courts must avoid
encroaching upon states’ rights.2

2

In Jones, the Court explained:
Importantly, like Miller and Montgomery, our holding today
does not preclude the States from imposing additional sentencing limits
in cases involving defendants under 18 convicted of murder. States may
categorically prohibit life without parole for all offenders under 18. Or
States may require sentencers to make extra factual findings before
sentencing an offender under 18 to life without parole. Or States may
direct sentencers to formally explain on the record why a life-withoutparole sentence is appropriate notwithstanding the defendant's youth.
States may also establish rigorous proportionality or other substantive
appellate review of life-without-parole sentences. All of those options,
and others, remain available to the States. See generally J. Sutton, 51
Imperfect Solutions (2018). Indeed, many States have recently adopted

MEMORANDUM DECISION AND ORDER - 50

Sarah also argues that Judge Wood’s additional reasoning for her sentence, using a
“credit and debit” analysis and analogizing to death penalty aggravating and mitigating
factors, was constitutionally inappropriate. However, again, Judge Wood’s conclusion, as
a discretionary decision that considered evidence of youthful characteristics in general
and in particular as to Sarah, fulfills the Miller requirement. There is no United States
Supreme Court precedent dictating that Judge Wood’s additional reasoning somehow
nullifies presentation and consideration of evidence of youthful characteristics presented
in the sentencing record. Here, this Court finds AEDPA precludes relief based on the
argument that Sarah’s sentences violate the substantive provisions of the Eighth
Amendment.
iii.

Evidentiary Hearing Requests

Sarah asserts that she requested an evidentiary hearing on successive postconviction review to present additional evidence in support of her Miller claim, but Judge
Bevan denied the request. Sarah now asserts that she is entitled to a federal court
evidentiary hearing before this Court decides the merits of the Idaho Supreme Court’s
decision. She desires to present evidence of how she has matured during incarceration,

one or more of those reforms. See, e.g., Brief for Former West Virginia
Delegate John Ellem et al. as Amici Curiae in Mathena v. Malvo, –––
U.S. ––––, 139 S.Ct. 1317, 203 L.Ed.2d 563 (2019), O. T. 2019, No. 18–
217, pp. 29–36. But the U. S. Constitution, as this Court’s precedents
have interpreted it, does not demand those particular policy approaches.
141 S. Ct. at 1323. Some states have codified additional protection for youth in what are termed “Millerfix statutes.” See, e.g., State v. Haag, 198 Wash. 2d 309, 322, 495 P.3d 241, 247–48 (Wash. Sept. 23,
2021).
MEMORANDUM DECISION AND ORDER - 51

made positive steps toward rehabilitation, and accumulated a good prison disciplinary
record. Dkt. 35, pp. 30-31. Montgomery provides that post-conviction prison behavior
records are “an example of one kind of evidence that prisoners might use to demonstrate
rehabilitation.” 577 U.S. at 213.
While Sarah is correct that the provision of the federal habeas corpus statute that
generally prohibits evidentiary development in federal court—28 U.S.C. § 2254(e)(2)—
does not apply here if her diligent effort to present evidence in state court was thwarted,
that procedural posture alone does not automatically qualify a claim for an evidentiary
hearing. The United States Court of Appeals for the Third Circuit explained: “[F]ederal
courts have discretion to grant a hearing or not. In exercising that discretion, courts focus
on whether a new evidentiary hearing would be meaningful, in that a new hearing would
have the potential to advance the petitioner’s claim.” Campbell v. Vaughn, 209 F.3d 280,
287 (3rd Cir. 2000).
Importantly, Sarah was already afforded a discretionary hearing in state court
during sentencing. In contrast, in Miller and Montgomery, the defendants were sentenced
under a mandatory scheme, and, thus, a new hearing, where the sentencing court is
permitted to consider youthful characteristics, was required. The underlying purpose of
AEDPA—that federal courts may not undo state appellate court decisions unless those
courts unreasonably apply United States Supreme Court precedent—governs here. Miller
and Montgomery simply do not require that juveniles sentenced under discretionary
sentencing schemes be permitted to bring forward post-conviction prison behavior and
MEMORANDUM DECISION AND ORDER - 52

rehabilitation evidence if they were afforded a sentencing hearing that comported with
Miller in the first instance. Sarah’s sentencing hearing before Judge Wood provided her
with sufficient Eighth Amendment protections.
Further, this Court concludes that an evidentiary hearing to provide rehabilitation
evidence is unnecessary to the adjudication of her claim. The deciding factor for the
sentencing court was that Sarah had been diagnosed with dependent personality disorder,
that she had acted in conformity with the traits associated with that disorder in a heinous
and extreme manner, and that society must be protected from her. Judge Wood
determined that protection of society was more important than taking a chance on
whether Sarah could be rehabilitated.
Sarah’s suggested new evidence does not address the factors that Judge Wood
thought most important. Further, a showing that Sarah has gained additional traits of
maturity does not show that she was so immature when the crime occurred that she
deserved a lesser sentence. Rather, the record reflects that Sarah was sufficiently mature
at the time she killed her parents to warrant a LWOP sentence.
iv.

Conclusion

To prevail on her Eighth Amendment LWOP claim, Sarah must show that the
Idaho Supreme Court’s rejection of this claim was contrary to, or an unreasonable
application of, federal constitutional law based on United States Supreme Court
precedent existing when the Idaho Supreme Court entered its order. The Idaho Supreme
Court concluded that, although Miller and Montgomery had not been decided at the time
MEMORANDUM DECISION AND ORDER - 53

of the sentencing hearing, the trial court still “clearly considered Johnson’s youth and all
its attendant characteristics and determined, in light of the heinous nature of the crime,
that Johnson, despite her youth, deserved life without parole.” State’s Lodging H-8,
pp.17-18.
The decision of Idaho’s highest state court was not contrary to, or an unreasonable
application of, Miller and Montgomery. The Idaho Supreme Court’s conclusion that the
sentence does not violate the Eighth Amendment is grounded in the following reasons:
Sarah had an individualized hearing where a LWOP sentence was not mandatory; a
psychiatrist and neuropsychologist presented extensive evidence of the differences
between youthful brains and mature brains and gave their opinions as to Sarah’s youthful
characteristics and potential for rehabilitation; the judge explained that he listened
attentively to the evidence; and the judge considered how youthful characteristics of a
juvenile offender can counsel against a fixed life sentence; but, in the end, the judge
exercised his discretion to decide that, under Sarah’s particular circumstances, a LWOP
sentence was warranted. In her federal Petition, Sarah requests procedural protections not
required by Miller, a result that is not available to her under AEDPA.
Montgomery recognized that, in the rare instance when a juvenile offender
commits a crime that “reflect[s] permanent incorrigibility,” LWOP is a constitutionally
appropriate sentence (though, importantly, that is not the holding of that case). 577 U.S.
at 209. Here, Judge Wood made a determination that this case is that rare instance where
LWOP is warranted. Judge Wood carefully contemplated the nature of the crimes and the
MEMORANDUM DECISION AND ORDER - 54

type of character it took to carry through with them. For example, Judge Wood said that
once Sarah pulled the trigger on her mother,
[l]iterally, at that point, devastation occurred. The evidence in
this case is that body parts flew all over. And one of the
things that I thought about in this case from forever is this
notion that for whatever reason you could get far enough off
center, far enough off the bubble, disturbed enough, whatever
the right word is, to pull the first trigger; then this devastation
occurred.
I mean the shot in that house had to be near deafening. The
neighbors heard it. So inside the confines of that house, it had
to be just almost deafening.
You add the report of the rifle, the recoil of the rifle, the
explosion of your mother’s head, and the lights didn't come
on. And the irony of that Id., p. 6481.
But the purpose of going through this is the amount of time
that elapsed. You had a chance to abandon, bail out of, stop
this senselessness numbers of times. Presumably, you and
your father had conversation, there was some communication.
It's undeniable that you had to look him in the eyes when you
shot him, and you shot him in the lungs. He had no chance to
survive.
And when I talk about the instrumentality used, the choice of
weapon is a high-powered rifle used to kill big game, and it’s
like the choice is intentional to make sure that we get this job
done.
Id., p. 6483.
Following the shooting, you proceeded and carried on still
with your plan. The evidence is that you placed knives in
Matt’s room on the bed. You placed knives at the foot of your
parents’ bed on the floor. You attempted to destroy and lose
MEMORANDUM DECISION AND ORDER - 55

evidence, get rid of the bathrobe, the gloves. Those are found
out in the trash can.
Id., p. 6484-85.
To show that this juvenile case stands out from others, Judge Wood made various
statements such as:
• “As to Dr. Beaver’s testimony about children, what I
would respond is children normally don’t act the way you
act. You had many options to do many different things,
and you chose to do what you did.” Id., p. 6492.
• “[T]here are murders, and then there are murders, if you
will.” Id., p. 6487-88.
• “[U]nder all of the circumstances, I would find that this is
in fact an extreme and aggravating case.” Id., pp. 64996500.
The United States Supreme Court has not retreated from its statement in Roper,
Graham, and Miller that the nature of the crime could reflect the nature of the individual,
warranting a LWOP sentence, see 435 U.S. at 573, 560 U.S. at 68, and 567 U.S. at 47980 (there exists the “rare juvenile offender whose crime reflects irreparable corruption”),
or from its statement in Montgomery that “life without parole could be a proportionate
sentence” for “those rare children whose crimes reflect irreparable corruption.” 577 U.S.
at 734 (emphasis added). Here, the sentencing court exercised its discretion to deem
Sarah’s case one of those rare circumstances, and the Idaho Supreme Court reasonably
upheld that determination. That another jurist might have agreed with the expert
witnesses and pronounced a different sentence, or overturned the sentence, does not
warrant habeas corpus relief. See Richter, 562 U.S. at 101. The Idaho Supreme Court’s
MEMORANDUM DECISION AND ORDER - 56

decision to affirm the sentences under the Eighth Amendment is not contrary to the
holdings of Roper, Graham, Miller, or Montgomery, nor is it based on an unreasonable
determination of the facts. Therefore, no relief is warranted on this claim.
DISCUSSION OF CLAIMS CONDITIONALLY DISMISSED:
THREE, FOUR and FIVE
1. Standard of Law
Claims Three, Four, and Five are procedurally defaulted Sixth Amendment
ineffective assistance of trial counsel claims. The Court can hear the merits of these
Strickland claims if Petitioner meets the Martinez v. Ryan exception, which incorporates
elements of the Strickland standard.
The Martinez cause and prejudice test consists of four necessary prongs: (1) the
underlying ineffective assistance of trial counsel (IATC) claim must be “substantial”; (2)
the procedural default must have been caused by PCR counsel’s Strickland
ineffectiveness or the lack of counsel during post-conviction review; (3) the postconviction proceeding was the “initial” collateral review proceeding where the IATC
claim could have been brought; and (4) state law or its practical procedures required that
the IATC claim be raised in the initial post-conviction proceeding, rather than on direct
appeal (as is the case in Idaho). See Trevino v. Thaler, 569 U.S. 416, 423, 429 (2013).
The failure to meet any prong means that the Martinez exception is unavailable to excuse
the procedural default of a claim.

MEMORANDUM DECISION AND ORDER - 57

Federal courts are not required to address a procedural issue before deciding
against the petitioner on the merits. Lambrix v. Singletary, 520 U.S. 518 (1997); cf.
Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002) (“appeals courts are empowered to,
and in some cases should, reach the merits of habeas petitions if they are, on their face
and without regard to any facts that could be developed below, clearly not meritorious
despite an asserted procedural bar”). In its previous Order, the Court ordered the parties
to brief the merits of those claims for which a Martinez argument was made. The parties
have done so.
2. Claims 3(A) through (C) are Procedurally Defaulted
In its Order of September 18, 2019, the Court concluded that Claims Three (A)
through (C) were procedurally defaulted in federal court for two reasons: primarily, for
failure to raise the claims in the first post-conviction petition, contrary to the Idaho statute
governing post-conviction actions; and, secondarily, for withdrawal of the claims without
giving the Idaho Supreme Court an opportunity to address them.
3. Claim 3(A): Intentional Destruction of Evidence
Sarah asserts that trial counsel acted ineffectively in failing to file a motion to
dismiss under Arizona v. Youngblood, 488 U.S. 51 (1988), because the State discarded
the comforter covering her mother’s body instead of keeping it for evidence. In
Youngblood, the Court held that, “unless a criminal defendant can show bad faith on the

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part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.” Id. at 58.3
Sarah has not shown that the failure to preserve the comforter was the result of bad
faith. A massive amount of evidence was collected during the investigation, including
over 1600 fingerprints. Besides the comforter, other items from the room were not
collected, such as the telephone, Kleenex box, or lamp—all of which had blood spatter on
them. Investigators took photographs of the comforter and testified at trial about the
condition of the comforter when they saw it shortly after the shootings.
After reviewing the state court record and the parties’ briefing, the Court
concludes that there is no evidence of bad faith destruction of evidence. Accordingly,
Petitioner has failed to show that her trial counsel performed deficiently in not filing a
Youngblood motion or that prejudice resulted from that omission. As a result, postconviction counsel was not ineffective in omitting this claim. Therefore, Claim 3(A) fails
both on the prejudice prong of Martinez and on the merits.
4. Claim 3(B): Parole Status of Janet Sylten, the “Cleaning Lady”
The next procedurally defaulted claim centers on the feeble defense that Janet
Sylten (“Janet”), who worked for a cleaning company hired to perform a one-time
cleaning of the Johnson house, was the person who killed Sarah’s parents. Sarah contends
that her trial counsel should have presented evidence that Janet was on parole for

Such “potentially useful information” is to be distinguished from “material exculpatory evidence”
addressed in Brady v. Maryland, 373 U.S. 83 (1953). Illinois v. Fisher, 540 U.S. 544, 548 (2004).
3

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aggravated battery of a police officer, which would have shown that she had a motive to
kill the Johnsons.
Janet’s interaction with the Johnsons was minimal. As a surprise thank you gift to
Sarah’s mother Diane (“Diane”) for hosting a family wedding, a relative hired Whirlwind
Services to do a one-time post-wedding house cleaning. State’s Lodging A-18, pp. 375860. Robin Lehat (“Robin”), who owned Whirlwind, and Janet, her employee, cleaned
Diane’s house. After the cleaning, Diane called Robin and said a new bottle of Estee
Lauder lotion was missing. Id., p. 3762. Robin then asked Janet about the lotion, because
Robin noticed that Janet had several Estee Lauder products. Janet denied taking the lotion
and refused to return to Diane’s house to help Robin look for the lotion. Id., p. 3763.
Robin and Diane spoke again and decided that Robin would make up for the lost
lotion by giving Diane a cleaning credit for the future. Id., pp. 3761-64. Robin testified
that Diane had been “really nice” about the whole thing. Id., p. 3764. Several witnesses
testified that Diane had discussed the missing lotion incident with them, had not seemed
angry about it, had not said she was going to call the police, and had seemed quite
pleased with the resulting compromise that she would receive a discounted cleaning in
the future. State’s Lodging A-18, pp. 3761 to 3764.
Janet lived on Robin’s property. Janet testified that her current boyfriend, Russ
Nuxoll (“Russ”), was Robin’s ex-boyfriend. Not surprisingly, Robin and Janet had been
having problems with each other before the lotion incident. Janet testified that she had
refused to go to Diane’s house to look for the lotion because she already had planned to
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help Russ with his hand-made willow furniture manufacturing business that day. While
Janet was at Russ’s, Robin put all of Janet’s belongings outside and left her a note that
she was fired. State’s Lodging A-16, p. 232. Janet testified that she was not really upset
over being fired from Whirlwind, because she preferred working at her other job building
furniture with Russ. Id., p. 2814.
After Robin and Janet parted ways, Robin changed the locks on her home. Robin
testified that Janet and Russ broke in and took some of her belongings, including a gift
that Russ had given to Robin when the two had dated in the past. State’s Lodging A-18,
pp. 3777-79.
After the murders of Sarah’s parents, Robin, Janet, and Russ all cooperated with
investigators and provided DNA and fingerprint samples. When Blaine County Sheriff’s
Captain Edward Fuller (“Captain Fuller”) interviewed Janet and Russ the first time, they
were somewhat reluctant to speak, not knowing why they were being interviewed.
Nothing they said or did during the interview indicated that they had any awareness that
the Johnsons had been killed. Between interviews, Janet and Russ read the newspaper
and learned that the Johnsons had been murdered; Janet and Russ freely spoke to Captain
Fuller after they were aware that was the reason they were being interviewed. Janet and
Russ had no clear alibis—they camped out in a wilderness area instead of having a
permanent residence. Janet allowed Captain Fuller to search her belongings. State’s
Lodging A-17, pp. 2886-2910. None of the DNA or fingerprints from the crime scene
matched Robin, Janet, or Russ, and they all were cleared as suspects.
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Mr. Pangburn did not present evidence that Janet was on parole at the time of the
murders. However, that fact was placed before the jury by the prosecution’s witness.
Captain Fuller testified that Janet “was initially concerned about talking to us, based on
being on parole. But she was freely talking to us about – about where she was.” State’s
Lodging A-17, p. 2889. Captain Fuller also mentioned Janet’s parole status a second time
during his testimony. Id., pp. 2895-96.
This claim fails on the merits for lack of a showing of prejudice or deficient
performance by Mr. Pangburn. No prejudice resulted, because the jury was informed of
Janet’s parole status. This alternative perpetrator defense was too weak to be taken
seriously, even if counsel would have highlighted Janet’s parole status. A jump from a
mere accusation that Janet stole a bottle of lotion from Diane to a conclusion that Janet
chose to murder not one, but two people, to save herself from being charged with stealing
the bottle of lotion, is simply implausible.
It is nearly impossible to conjure up a scenario in which Janet, who had been to
the Johnsons’ house once, could have obtained the weapon from the over-garage
apartment, the knives from several areas of the kitchen, Sarah’s robe from her room, and
Diane’s leather gloves from her car, let alone could have carried out two murders with a
high-powered rifle without being discovered. The Court agrees with Respondent that “[i]t
is preposterous to suggest that the jury would have instead acquitted Johnson of the
murders had they only known that [Janet] Sylten, in addition to having been accused of
theft at the Johnsons’ residence, was also on parole at the time of the murders. Sylten was
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not a viable alternative murder suspect.” Dkt. 33, p. 36. This claim fails both on the
prejudice prong of Martinez and on the merits—neither trial counsel nor post-conviction
counsel was ineffective.
5. Claim 3(C): Failure to Object to Prosecutorial Misconduct
Sarah asserts that her trial counsel failed to object to prosecutorial misconduct
throughout the trial. The standard for a claim of prosecutorial misconduct on habeas
review is a “narrow one of due process, and not the broad exercise of supervisory
power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)). A prosecutor’s comments or actions that may
be considered inappropriate under the rules of fair advocacy, or even reversible error on
direct review, will not warrant federal habeas relief unless the alleged misconduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly, 416 U.S. at 643.
i.

Allegation that the prosecutor told the state’s witnesses they could not talk to
the defense without the prosecutor or his agent being present
Sarah asserts that the prosecuting attorney committed misconduct when he “told

all state officials involved in the case that they could not talk to the defense without him
or his agent present.” Dkt. 8-1 p. 17. Even if the prosecutor did so, Sarah has not come
forward with any evidence or argument showing that her defense was prejudiced as a
result of a failure to object. Therefore, this claim fails both on the prejudice prong of

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Martinez and on the merits—neither trial counsel nor post-conviction counsel was
ineffective.
ii.

Allegation that the prosecutor improperly invoked the sympathy of the jury in
the opening statement

Sarah alleges that the prosecutor improperly invoked the sympathy of the jury in
his opening statement. The purpose of an opening statement is “to state what evidence
will be presented, to make it easier for the jurors to understand what is to follow, and to
relate parts of the evidence and testimony to the whole.” Arizona v. Washington, 434 U.S.
497, 513 n. 32 (1978). “Arguments that encourage juror identification with crime victims
are improper.” Johnson v. Bell, 525 F.3d 466, 484 (6th Cir. 2008). A prosecutor acts
improperly when he “calls on the jury’s emotions and fears—rather than the evidence—
to decide the case.” Id.
The United States Court of Appeals for the Sixth Circuit has observed: “The
Supreme Court has clearly indicated that the state courts have substantial breathing room
when considering prosecutorial misconduct claims because ‘constitutional line drawing
[in prosecutorial misconduct cases] is necessarily imprecise.’” Slagle v. Bagley, 457 F.3d
501, 516 (6th Cir. 2006) (quoting Donnelly, 416 U.S.at 645). In all instances of asserted
prosecutorial misconduct, to warrant habeas corpus relief, the petitioner must show that
the alleged misconduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly, 416 U.S. at 643.
In Sarah’s case, the prosecutor’s opening statement began as follows:

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Although this case states that it’s state of Idaho versus Sarah
Marie Johnson, this case is a lot about a whole lot more. It’s
about these two people, Alan and Diane Johnson. Hardworking, honest, good, decent people, whose murder left a
grieving son, a brother, sisters, parents, and a host of good
friends. This case, ladies and gentlemen, is not about an
unknown killer. This case is about evidence left behind; left
behind by that lady that sits right there at that table, Sarah
Marie Johnson.
State’s Lodging A-15, pp. 1471-1472.
Sarah’s assertion that “[t]his argument was misconduct because it played upon the
sympathies of the jury” has some basis in fact, but her assertion that these words “urged
them to return a verdict based on information other than the properly admitted relevant
evidence” is unsupportable. The statement included no “urging” and was followed by 29
transcript pages of the details of the evidence against Sarah that the prosecutor outlined
would be presented at trial. See Dkt. 8-1, p. 17; State’s Lodging A-15, pp. 1473-1502.
While Mr. Pangburn could have objected that the prosecutor’s opening statements
about the victims were intended to invoke the sympathy of the jury, a comparison to other
cases shows that the comments were not egregious; thus, no prejudice resulted from the
failure to object. In Brown v. Sirmons, 415 F. Supp. 2d 1268, 1296 (N.D. Okla. 2006),
aff'd, 515 F.3d 1072 (10th Cir. 2008), the prosecutor opened by stating that the “victim
had hopes and dreams.” Id. at 1296. The federal habeas court held that, even if the
statement was in error and an attempt to invoke sympathy, it simply did not rise to the
level required to constitute a violation of Brown’s due process rights. Id.

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In Studer v. Booker, No. 09-14434, 2013 WL 425819 (E.D. Mich. Jan. 24, 2013),
during the opening statement the prosecutor said that “the family was in turmoil, the
children were without a mother or relatives, and the defendant was satisfying the
grievances in his marriage” by killing the victims. Id. at *12. Studer argued that the
prosecutor impermissibly appealed to the jurors’ sympathy and made an improper “civic
duty” argument. On appeal, the state appellate court agreed that “[a]n appeal to the jury
to sympathize with a victim may constitute an improper argument,” but concluded that
“the prosecutor did not urge the jurors to convict defendant as part of its civic duty,” and,
thus, “[a]t worst, the prosecutor merely stated the obvious regarding the family’s situation
as a result of the killings and presented an argument as to defendant’s motive that was
consistent with the evidence presented.” Id. The federal habeas court agreed that the
prosecutor’s references to the victim and her children during opening statement and
throughout the case may have evoked sympathy, but found that (1) the prosecutor did not
ask the jury to convict on that basis; (2) the prosecutor did not make an improper appeal
to emotions or civic duty; and (3) the remarks were not so flagrant so as to render the
petitioner’s trial unfair. Id.
In another similar instance, a petitioner alleged her attorney was ineffective for
failing to object to comments made by the prosecutor during opening statement regarding
the victim’s mother losing a son and his two children losing their father. Timmons v.
Aldridge, No. CIV-17-86-R, 2017 WL 2616146, at *8 (W.D. Okla. May 24, 2017), report
and recommendation adopted, No. CIV-17-86-R, 2017 WL 2609088 (W.D. Okla. June
MEMORANDUM DECISION AND ORDER - 66

15, 2017). In Timmons, the petitioner argued that these comments improperly elicited
sympathy from the jury. The court concluded that the petitioner failed to show how she
was prejudiced by these comments because it was “undisputed that Mr. Lane died and
indeed left his mother without a son and his children without a father.” 2017 WL
2616146, at *8.
In Taylor v. Martin, No. CIV-16-462-RAW-KEW, 2020 WL 1189932 (E.D.
Okla. Mar. 12, 2020), the court concluded that the prosecutor’s reference to the victim as
“a small, timid 7-year-old girl” did not, in itself, invoke sympathy,” because it was a
factual statement. Id. at *13. Further, the court reasoned, “the prosecutorial comments
made during closing, even if improper, when weighed against the strength of the
evidence against the defendant, did not result in a fundamentally unfair proceeding.” Id.
As to the prosecutorial comments in Sarah’s case, this Court concludes that trial
counsel did not perform deficiently in failing to object to the prosecutor’s opening
statement—given the considerable leeway counsel has in deciding whether to object to
opening statements. The comments by the prosecutor were not egregious, lengthy, or
inconsistent with the evidence. Neither did the prosecutor ask the jury to convict the
defendant based on the victims’ character or the family’s loss, rather than on the evidence
presented at trial.
The Court agrees with Respondent that, because the brief comments by the
prosecutor preceded a 27-day jury trial, no prejudice occurred, because it is unlikely that
the comments carried any weight in comparison to the overwhelming evidence pointing
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to Sarah as the perpetrator. See United States v. Williams–Davis, 90 F.3d 490, 508
(D.C.Cir. 1996) (“the length of time between the prosecutor’s opening statement and jury
deliberations… makes it unlikely that specific allegations in the opening profoundly
influenced those deliberations”).
Finally, the jury was instructed that the opening statements were not evidence.
State’s Lodging A-21, pp. 6083- 6084. It must be presumed that the jury followed this
instruction. Weeks v. Angelone, 528 U.S. 225, 226 (2000). This claim fails both on the
prejudice prong of Martinez and on the merits. Neither trial counsel nor post-conviction
counsel was ineffective.
iii.

Allegation that prosecutor suggested Sarah was required to disprove that she
killed her parents

Sarah claims that, “[i]n closing argument, the State committed misconduct by
shifting the burden of proof,” because the “argument was based, in part, on the theme that
the defense had not proven that someone besides Sarah had committed the murders.” Dkt.
8-1, p. 17. Strickland governs this claim. There is no specific precedent from the United
States Supreme Court providing a standard for when a lawyer must object to a
prosecutor’s closing argument. Because many lawyers refrain from objecting during
opening statement and closing argument, the failure to object is within the “wide range”
of permissible professional legal conduct, unless the prosecutor makes “egregious
misstatements.” United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993), as

MEMORANDUM DECISION AND ORDER - 68

amended on denial of reh'g (Apr. 15, 1993); Cunningham v. Wong, 704 F.3d 1143, 1159
(9th Cir. 2013) (internal quotation marks omitted).
Underlying the Strickland standard of law as to this claim is the substantive due
process principle that a prosecutor may not tell the jury that the defendant has the burden
to prove her innocence. In re Winship, 397 U.S. 358 (1970), declared that the Due
Process Clause “protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” Id. at 364. In Patterson v. New York, 432 U.S. 197 (1977), the Court held that
Winship was not transgressed where state law requires the prosecution to prove beyond a
reasonable doubt each of the elements of murder, but places the burden of proving an
affirmative defense on the defendant.
The United States Court of Appeals for the Ninth Circuit has observed that
prosecutors have “considerable leeway” in closing argument to strike “hard blows.”
United States v. Wilkes, 662 F.3d 524, 538 (9th Cir. 2011) (internal citation and quotation
marks omitted). 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).
Importantly, “comments 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
defendant’s failure to explain them adequately requires a guilty verdict” and where the
prosecutor “reiterates that the burden of proof is on the government.” United States v.

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Vaandering, 50 F.3d 696, 701-702 (9th Cir. 1995) (citations and internal quotations
omitted).
In United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011), the Ninth Circuit
illustrated this principle:
The record shows that the prosecutor’s comments
about what the jury “must find” were made in the context of
explaining why the jury should reject Tucker’s version of
events, and only after the prosecutor already had said that the
government was required to prove beyond a reasonable doubt
that Tucker was guilty of possession of a firearm. In addition,
the prosecutor reiterated on several occasions that the
government had the burden of proof. We further agree with
the district court that the prosecutor’s comments were only
argument, and note that the district court correctly instructed
the jury on the proper standard. While the prosecutor’s
phrasing was inartful, his meaning is evident from context: to
believe the defendant’s account, the jury would have to
believe implausible aspects of his testimony. This sort of
argumentation is permissible. See Vaandering, 50 F.3d at
701–02. Accordingly, the prosecutor’s comments did not
constitute misconduct, and the district court did not err by
allowing them. Furthermore, even if the comments were
improper, the court’s statements and instructions to the jury
neutralized any potential prejudice.
Id. at 1122.
Here, Sarah asserts that the prosecutor “shifted the burden of proof,” because, in
closing argument, the State did not focus on how it proved its case, but focused on how
Sarah alleged, but did not show, that an alternative perpetrator had committed the
murders. Dkt. 19, pp. 39-40 (citing State’s Lodging A-11, pp. 175-218).

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However, near the start of his closing argument, Mr. Thomas, in fact, highlighted
that Sarah did not have the burden of proof for anything:
“Let’s look at what we have got here. The defense,
although they do not have the prove anything, they do not
have to prove their innocence, what have they said?
They have attacked our investigation as incomplete.
They say the state bungled the criminal investigation. But
what do we have?
State’s Lodging A-11, p. 176. The prosecutor next discussed Sarah’s defense and how it
did not add up because of the strong evidence supporting her guilt. The prosecutor
rebutted Sarah’s attempt to implicate two other individuals as perpetrators. The
prosecutor did not state or imply that the jury was required to convict unless Sarah
proved that someone else committed the murders. See id., pp. 175-218.
The jury was properly instructed that the lawyers’ arguments were not evidence.
The jury was instructed that the State bore the burden to prove every element of the
charged crimes against Sarah beyond a reasonable doubt. State’s Lodging A-21, pp.
6085-6086. It must presumed that the jury followed these instructions. Weeks, 528 U.S. at
2346.
The prosecutor stated that Sarah did not have the burden to prove anything. Circuit
case law interpreting broad United States Supreme Court due process principles permits
the prosecutor to point to inconsistencies and weaknesses in the defense’s theory and
evidence. Because Mr. Pangburn had broad discretion in whether to make objections,
especially during the prosecutor’s closing argument, and because the closing argument
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did not clearly suggest that Sarah had the burden to prove her innocence or prove that
another perpetrator was at fault, the Court concludes that Mr. Pangburn did not perform
deficiently in failing to object.
Further, the jury instructions neutralized any inference that Sarah had to prove
anything. In addition, Sarah has not demonstrated that an objection to any portion of the
prosecutor’s argument would have resulted in a different trial verdict in light of the
overwhelming evidence of Sarah’s guilt presented by the State at the trial. See Dkt. 30,
pp. 3-26, 55-63. The State proved its case during trial with ample evidence. Therefore,
Sarah has failed to show prejudice resulting from the lack of objection. Accordingly, this
subclaim fails on the Martinez prejudice prong and on the merits.
6. Claim 3(D) Jury’s Trip to Crime Scene
Sarah asserts that trial counsel failed to object to the jury’s trip from Ada County
to Bellevue to view the Johnson house (after it had been cleaned of the aftermath of the
shootings). Idaho law grants Idaho trial courts the authority to permit trial juries to view
the scene of a crime:
When, in the opinion of the court, it is proper that the
jury should view the place in which the offense is charged to
have been committed, or in which any other material fact
occurred, it may order the jury to be conducted in a body, in
the custody of the sheriff, to the place, which must be shown
to them by a person appointed by the court for that purpose;
and the sheriff must be sworn to suffer no person to speak or
communicate with the jury, nor to do so himself, on any
subject connected with the trial, and to return them into court
without unnecessary delay, or at a specified time.

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I.C. § 19-2124.
Prior to the jury’s visit to the Johnson house, the parties met with Judge Wood to
determine the protocol for the visit, including instructions for the jury. State’s Lodging
A-16, pp. 2158-2167. Jurors were to be given a diagram of the property, and nothing else.
Id. The attorneys agreed to meet on site beforehand to go through the house. Id., p. 2159.
Mr. Pangburn indicated that he had no real concerns that there would be problems with
onlookers, because it would be “midday in a fairly small neighborhood,” and Mr. Thomas
said Detective Harkins would have a law enforcement officer park at the end of the block
to “keep the curious away.” Id., p. 2162.
The court instructed the jury:
No evidence will be presented at the scene. You will
be provided with a couple of different schematics of the scene
so you can correlate the scene to the schematic.
Your observations during this view of the place
involved are not evidence in this case, and you are not to take
such observations into consideration in arriving at your
verdict. The view is only for the purpose of assisting you in
understanding the evidence presented in court.
State’s Lodging A-16, p. 2362.
Sarah argues that the viewing and instruction were improper because the viewing
was not evidence and information from the viewing could not be used in deliberations.
However, the Idaho Supreme Court previously determined that a viewing is for exactly
the purpose for which Judge Wood instructed the jury. That is, “[t]he purpose of the
statute is not to permit the taking of evidence out of court, but simply to permit the jury to
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view the place where the transaction is shown to have occurred, in order that they may
the better understand the evidence which has been introduced.” State v. Main, 37 Idaho
449, 216 P. 731, 734 (Idaho 1923).
Sarah has not shown that the visit was inappropriate for the purpose for which the
jury was instructed. For example, a contested issue at trial was whether Sarah’s parents’
bedroom door was open or closed when they were shot, but blood and brain matter was
found spattered across the hall and into Sarah’s room. Another issue involved evidence
that the shooter collected the gun from the garage apartment, the gloves from Diane’s car,
the knives from the kitchen, and then placed the knives in the various bedrooms.
Accordingly, an understanding of the configuration of the house would have been helpful
to the jury to understand all of this evidence; the house configuration would not easily be
confused as “evidence”; and understanding the configuration would not be prejudicial to
Sarah.
Sarah asserts that the visit was highly prejudicial and that she was deprived of the
right to be present during the viewing. Dkt. 8-1, pp. 18-19. However, she provides no
particular facts or argument showing any undue prejudice that occurred from the viewing
or the lack of her presence. Further, even though the prosecutor argued that Sarah should
not attend because her presence would be “prejudicial,” he did not identify any particular
prejudice, and Sarah’s attempt to rely on this statement to argue prejudice to the defense
is unsupported.

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Sarah argues that Mr. Pangburn should not have waived her presence at the site
visit. During in camera discussions, he indicated he did not intend to request that Sarah
be transported to the site. State’s Lodging A-15, pp. 1920-21. Respondent argues that
Sarah was present in court the day before the jury viewing, while the logistics of the
viewing were being discussed and that she personally expressed her agreement with the
plan. The record reflects that this is true.
Mr. Pangburn:

We are going to waive Miss
Johnson’s appearance for this
little hearing in the morning. And
that way – I just wanted to
let the transport officer know, so
he won’t have to bother
bringing her over here for that.
And she’s not going to be in
attendance up there, so there’s
just no reason to bring her over in
the morning.

The Court:

Is that agreeable to you, Miss
Johnson?

Ms. Johnson:

Yes, it is, Your Honor.

State’s Lodging A-16, p. 2158, 2164-2165.
In summary, Sarah personally waived her presence at the crime scene viewing by
the jury and has not identified any prejudice arising from this claim that contributed to or
resulted in her conviction. For this reason, she has not shown that the Martinez prejudice
prong is met or that the claim is meritorious—neither trial counsel nor post-conviction
was ineffective.
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7. Claim Four: Conflict of Interest
Sarah asserts that she was denied her Sixth and Fourteenth Amendment rights to
effective assistance of counsel under United States v. Cronic, 466 U.S. 648 (1984), when
her appointed counsel labored through the proceedings under an actual conflict of
interest. In particular, she asserts that her trial counsel had a dispute with the county over
the amount he was to be paid for his attorney services under their contract.
This claim is procedurally defaulted, because Sarah withdrew it in the course of
her successive post-conviction proceeding. State’s Lodging G-1, p. 209. To meet the
Martinez exception, Sarah must show that the claim is substantial and that she was
prejudiced.
The Sixth Amendment includes the right to be represented by conflict-free
counsel. Woods v. Georgia, 450 U.S. 261, 271 (1981). To establish a violation of that
right, a habeas petitioner must show than an actual conflict of interest adversely affected
his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 338 (1980). An actual
conflict of interest is one “that affected counsel’s performance – as opposed to a mere
theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 170 (2002).
In Mickens, the Court further refined the Sullivan rule and opined that courts should not
apply Sullivan’s presumed prejudice rule “unblinkingly to all kinds of alleged attorney
ethical conflicts,” “even” alleged conflicts involving counsel’s “personal or financial
interests.” Id. at 174 (internal quotation marks and citations omitted). In Mickens, the
Court emphasized that Sullivan required a defendant to show that “counsel actively
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represented conflicting interests,” rather than simply show the existence of conflicts
between a client’s welfare and counsel's financial interests. Id. at 175–76.
Sarah asserts that an actual conflict of interest existed, because Mr. Pangburn had
an ongoing dispute over billing and payment with Blaine County, with whom Mr.
Pangburn contracted to provide representation to indigent criminal defendants, including
Sarah. State’s Lodging G-1, pp. 28-33; Dkt. 8-1, pp. 19-22. Sarah has asserted, among
other things, that: (1) Mr. Pangburn alerted the court, prior to the trial, that the county
contract conflicted with the Rules of Professional Conduct in requiring him to provide
reports to the court and county prosecutor to support his application for payment of
additional fees; (2) Mr. Pangburn sent “detailed reports [to the county] explaining what
was done during each billed hour”; (3) after the trial, the trial court revoked the
appointment of Mr. Pangburn’s co-counsel and all defense investigators for the remainder
of the post-trial proceedings; (4) there existed a long-running dispute between Mr.
Pangburn and the county regarding Mr. Pangburn’s compensation rate; and (5) the court
ultimately ordered Mr. Pangburn to return to Blaine County any sums over $65.00 per
hour that it had paid to him. State’s lodging G-1, pp. 28-33; Dkt. 8-1, pp. 19-22.
The record reflects that Mr. Pangburn’s billing dispute with Blaine County was
ongoing during his representation of Sarah. Mr. Pangburn first began representing Sarah
on October 30, 2003. State’s Lodging A-2, p. 53. Judge Wood reviewed the dispute in the
context of representation for Sarah on November 25, 2003. Public Defender Douglas
Nelson indicated he anticipated that he may be called as a witness at Sarah’s trial, and
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therefore had an actual conflict of interest. State’s Lodging A-1, p. 6. The court noted that
the considerations of the alleged conflict of interest regarding review of Pangburn’s
billings were “budgetary only.” Id. Mr. Pangburn diligently and successfully pursued a
request for appointment of a second chair counsel, as the case was classified as a
”complex, forensic case” that required more than one defense attorney. Id. Mr. Pangburn
engaged in discovery, pursued motions to compel and for sanctions, filed a motion to
suppress, filed motions to exclude evidence, filed motions on pretrial publicity, hired
experts and investigators, filed motions regarding Sarah’s pretrial detainee housing, and
otherwise vigorously pursued Sarah’s defense. See State’s Lodgings A-1 to A-21.
Despite the ongoing dispute between Mr. Pangburn and the county, which paid
Sarah’s legal fees, this Court does not see any connection between the subject matter of
the conflict of interest and the work counsel performed for Sarah. In Sanders v. Ratelle,
21 F.3d 1446, 1452 (9th Cir. 1994), the Ninth Circuit explained: “The existence of an
actual conflict cannot be governed solely by the perceptions of the attorney; rather, the
court itself must examine the record to discern whether the attorney’s behavior seems to
have been influenced by the suggested conflict.”
Sarah has not shown that Mr. Pangburn neglected her case or neglected her as a
client due to the dispute over his contract with the county. Rather, the record reflects that
much of the dispute was over the fact that Mr. Pangburn did more work for Sarah than he
was authorized to do on the case. He “billed over 1000 hours of attorney time for January
and February,” and billed for “advice to Sarah in the PSI process that the court did not
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feel was warranted, including advice and assistance in filling out the PSI questionnaire.”
Dkt. 8-1, p. 21.
Sarah has not alleged with any particularity, and this Court sees nothing in its own
review of the record to show, that Mr. Pangburn’s representation of Sarah was negatively
influenced by his dispute with the county over his contract. The conflict did not rise to
the level of an actual conflict under Cronic or Mullaney. This claim fails for lack of
Martinez prejudice and lack of merit.
8. Claim Five: Ineffective Assistance of Direct Appeal Counsel
Sarah asserts that her direct appeal counsel was ineffective under the Sixth
Amendment on two factual bases: (A) failure to raise district court error in denying the
motion to suppress the testimony of Malinda Gonzalez; and (B) failure to raise an
argument that the two fixed life sentences were both excessive and unconstitutional. The
Martinez exception does not apply to direct appeal counsel claims. See Davila v. Davis,
582 U.S. 521 (2017) (holding that Martinez is not applicable to claims of ineffective
assistance of direct appeal counsel). Therefore, Plaintiff must show traditional cause and
prejudice.
To show “cause” for a procedural default, a petitioner must prove that some
objective factor external to the defense impeded his or his counsel’s efforts to comply
with the state procedural rule at issue. Coleman v. Thompson, 501 U.S. 722, 753 (1991).
A defense attorney’s errors that rise to the level of a violation of the Sixth Amendment
right to effective assistance of counsel may, under certain circumstances, serve as a cause
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to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488.
However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not
procedurally defaulted or, if defaulted, a petitioner can show cause and prejudice for the
default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before a federal
court can consider ineffective assistance of counsel as cause to excuse the default of
underlying habeas claims, a petitioner generally must have presented the ineffective
assistance of counsel claim in a procedurally proper manner to the state courts, such as in
a post-conviction relief petition, including through the level of the Idaho Supreme Court.
Sarah has not shown adequate cause for the default of these claims; therefore, they
are subject to dismissal with prejudice. Alternatively, as the Court will explain, they are
without merit and are subject to denial.
A. Malinda Gonzalez Testimony
The Strickland principles apply to determining ineffective assistance of appellate
counsel claims. Evitts v. Lucey, 469 U.S. 387 (1985). To show prejudice on appeal, a
petitioner must show that their attorney failed to raise an issue obvious from the trial
record that probably would have resulted in reversal. See Miller v. Keeney, 882 F.2d
1428, 1434 n.9 (9th Cir. 1989). If a petitioner does not show that an attorney’s act or
omission would have resulted in reversal, then they cannot satisfy either prong of
Strickland: appellate counsel was not ineffective for failing to raise such an issue, and
petitioner suffered no prejudice as a result of it not having been raised. Id.
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“Effective legal assistance” does not mean that appellate counsel must appeal
every question of law or every nonfrivolous issue requested by a criminal defendant.
Jones v. Barnes, 463 U.S. 745, 751-54 (1983). “[N]othing in the Constitution” requires
“judges to second-guess reasonable professional judgments and impose on appointed
counsel a duty to raise every ‘colorable claim’ suggested by a client.” Id. at 754. “[T]he
process of winnowing out weaker claims on appeal and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Burger v. Kemp, 483 U.S. 776, 784 (1987) (internal citations and punctuation
omitted).
Sarah asserts that appellate counsel was ineffective for failing to argue on direct
appeal that the trial court erred in denying her motion to suppress the testimony of state
witness Malinda Gonzalez, who was 22 years old. Dkt. 8-1, pp. 23-24; State’s Lodging
A-18, p. 3860. Gonzalez was Sarah’s jail cellmate, who came forward to assert that Sarah
made incriminating statements to her. See State’s Lodging A-18, pp. 3857-4018. Prior to
trial, Mr. Pangburn moved to suppress the statements, arguing that, under state law, it
was unlawful to incarcerate a juvenile with adult inmates. See id., pp. 450- 451; State’s
Lodging A-3, pp. 369-370. Sarah had been housed in the same cell as adult female
inmates, because Blaine County had only one jail cell available for female inmates. See
id., p. 451.
After a hearing, Judge Wood denied the motion to suppress. State’s Lodging A-4,
pp. 448-456. The court concluded that Sarah’s placement with adult inmates was
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improper pursuant to I.C. § 20-602(2). Id., p. 453. However, the court concluded that this
improper placement did not require the suppression of Sarah’s statements to Gonzalez.
Id., pp. 453-456.
Judge Wood found no controlling Idaho authority on the issue, but relied upon
State v. Kemper, 535 S.W. 2d 241 (Mo. Ct. App. 1975), in which the Missouri Court of
Appeals affirmed the trial court’s refusal to suppress a juvenile’s statements made to an
adult inmate while the juvenile was improperly incarcerated in an adult facility. Judge
Wood agreed that, when the purpose of a statute is to inhibit adult communication to
juveniles, it need not be applied in a suppression case where the juvenile voluntarily
communicated with an adult, because that situation was irrelevant to the essential intent
of the statute. Further, the protections of Miranda v. Arizona do not apply to volunteered
statements of a defendant to a fellow inmate. State’s Lodging A-4, pp. 60-61 (citing
Kemper, 535 S.W. at 256).
Therefore, rather than suppress the evidence, Judge Wood ruled the appropriate
remedy was an order directing the sheriff to comply with I.C. § 20-602(2) and house
Johnson separately from adults, even if such a placement required Johnson to be housed
in another county. State’s Lodging A-4, p. 455.
Here, Respondent argues that Sarah has not identified any controlling or relevant
contrary persuasive authority involving juvenile inmate jail placement that would have
dictated a different outcome in 2008, had counsel included it in the direct appeal. See
Dkt. 8-1, pp. 23-24; State’s Lodging G-1, pp. 129-132, C-7. The Court agrees that Sarah
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has failed to establish a clear basis for an Idaho appellate court to reverse the trial court’s
denial of her motion to suppress, much less demonstrate that appellate counsel’s decision
not to raise this claim on direct appeal was so egregious as to overcome the presumption
that direct appeal counsel’s claim-selection determinations were anything but strategic.
Even if the state court erred in admitting Gonzales’s testimony at trial and the
issue would have been raised on appeal, it is unlikely that it would have been deemed
harmful error. Sarah did not directly admit to Gonzales that she killed her parents.
Gonzales testified that Sarah mentioned that: (1) the sheriff’s investigator did not say
anything on the news about the knives that were placed at the foot of each bed, id. at
3913-15; (2) that the pink bathrobe was placed in the trash dumpster on trash day, but the
investigator got there before the trash truck and retrieved the robe, id., p. 3916; and (3)
that Sarah would have more money than God when she got out of jail. Id., p. 3917-1.
Gonzales’ most harmful testimony was (1) that Sarah once “slipped up” and said, “When
I kill – I mean when the killers killed my parents,” id., p. 3863-64; (2) that Sarah said her
mother was “a fucking bitch”; and (3) that Sarah had “knock-down, drag-out fights with
her mom.” Id., p. 3865.
The prosecutor briefly referenced Gonzales’ testimony during closing argument to
assert that it was Sarah, and not someone else, who had had staged the knives at the scene
of the crime. State’s Lodging A-11, pp. 213-214. Because of the extensive evidence
pointing to Sarah as the perpetrator, the Court finds the absence of Gonzalez’ testimony
would not have made a difference in the outcome of the trial. Therefore, Sarah has not
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demonstrated Strickland prejudice from any alleged deficient performance. Therefore,
even if it was not procedurally defaulted, Claim 5(a) fails under de novo review.
B. Excessive or Unconstitutional Sentence
Sarah asserts that her direct appeal counsel was ineffective for failing to challenge
her sentences on the grounds that they were unconstitutional or excessive. Had direct
appeal counsel raised an Eighth Amendment sentencing claim, counsel would not have
had the benefit of either Miller or Montgomery to support the claim. In that era of law,
there is nothing to show that Sarah’s sentence was unconstitutional under Roper or
Graham. Further, Because Sarah was able to and did challenge the constitutionality of
her sentences after Montgomery made Miller retroactive, she cannot show that her direct
appellate counsel was ineffective for failing to raise an earlier Eighth Amendment
challenge that was even less likely to succeed.
There is no claim that the Idaho Constitution offers Sarah greater protection than
the United States Constitution. Therefore, this claim fails under the reasoning above.
Neither would an excessive sentence under an abuse of discretion theory have
been successful. To show that her sentence was excessive under Idaho law, Sarah would
have had to bring forward evidence that the state district court abused its discretion.
Idaho v. Oliver, 170 P.3d 387, 391 (Idaho 2007) (citing Idaho v. Strand, 50 P.3d 472, 475
(Idaho 2002); Idaho v. Huffman, 159 P.3d 838 (Idaho 2007)). Where a sentence is within
statutory limits, the appellant bears the burden of demonstrating a clear abuse of
discretion. Idaho v. Baker, 38 P.3d 614, 615 (Idaho 2001) (citing Idaho v. Lundquist, 11
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P.3d 27 (Idaho 2000)). The abuse of discretion test analyzes whether the district court:
“(1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to
the specific choices available to it; and (4) reached its decision by the exercise of reason.”
Lunenberg v. My Fun Life, 421 P.3d 187, 194 (Idaho 2018).
Based on the sentencing court’s extensive analysis of the reasons for the LWOP
sentence, this Court concludes there is no likelihood that an Idaho appellate court would
have vacated Sarah’s sentences on the ground that the trial court abused its sentencing
discretion. Therefore, Sarah cannot demonstrate Strickland deficient performance or
prejudice as to direct appeal counsel’s failure to raise a sentencing claim under the Eighth
Amendment, the Idaho Constitution, or a state law abuse-of-discretion theory. Therefore,
even if it was not procedurally defaulted, this claim fails under a de novo review.
9. Summary
Claims Two and Seven fail on the merits. Claims Three, Four, and Five are
procedurally defaulted. No adequate cause and prejudice has been shown to excuse the
default of these claims. Alternatively, they fail on the merits. To the extent that the Court
has not explicitly addressed all of Sarah’s particular arguments as to any claim, the Court
clarifies that it has considered and rejected them.

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ORDER
IT IS ORDERED:
1.

The Amended Petition for Writ of Habeas Corpus (Dkt. 8) is DENIED and
DISMISSED with prejudice.

2.

The Court will issue a certificate of appealability for Claim Seven. As to
the other claims, the Court does not find their resolution to be reasonably
debatable, and. 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 for other claims from the
Ninth Circuit by filing a request in that court.

DATED: August 2, 2023

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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