Johnson v. Kirkman

Filing 6

INITIAL REVIEW ORDER Petitioner's Motion to Stay and Abey (Dkt. 5 ) is GRANTED. This case is STAYED pending completion of Petitioner's post conviction action in state court. This case is administratively terminated for internal court adm inistration purposes only. Administrative termination does not affect the filing date of the petition, nor does it affect the rights of the parties in any way. Within 30 days after Petitioner's currently-pending state court action is completed, Petitioner may request that the Clerk of Court reopen this case if she desires to proceed. The parties shall not file anything further in this case while they are awaiting completion of the currently-pending state court action.Signed by Judge Candy W. Dale(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SARAH MARIE JOHNSON,
Petitioner,

Case No. 4:14-cv-00395-CWD

vs.

INITIAL REVIEW ORDER

JEFF KIRKMAN,
Respondent.

Sarah Marie Johnson filed a Petition for Writ of Habeas Corpus challenging her
state court conviction (Dkt. 1), together with a Motion to Stay and Abey (Dkt. 5), through
counsel Deborah Whipple and Dennis Benjamin. The Court now reviews the Petition to
determine whether it is subject to summary dismissal pursuant to 28 U.S.C. ' 2243 or
Rule 4 of the Rules Governing ' 2254 Cases.
REVIEW OF PETITION
1.

Standard of Law
Federal habeas corpus relief under 28 U.S.C. ' 2254 is available to petitioners who

show that they are held in custody under a state court judgment and that such custody
violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. ' 2254(a).
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The Court is required to review a habeas corpus petition upon receipt to determine
whether it is subject to summary dismissal. See Rule 4 of the Rules Governing Section
2254 Cases. Summary dismissal is appropriate where Ait plainly appears from the face of
the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court.@ Id.
Before a habeas petitioner may present an issue for federal court review, she must
first “give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State=s established appellate review process.”
O=Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This is called “exhaustion of state
court remedies.” In Idaho, that means presenting the claims to the Idaho Supreme Court
in a procedurally proper manner.
In Rhines v. Weber, 544 U.S. 269 (2005), the Court determined that federal district
courts have discretion to stay a mixed habeas petition containing exhausted and
unexhausted claims to allow the petitioner to present unexhausted claims to the state
court and then to return to federal court for review of the perfected petition. Id. at 277. In
determining whether to exercise discretion to grant a stay, the district court should
consider whether the petitioner had good cause for her failure to exhaust, whether her
unexhausted claims are potentially meritorious, and whether there is any indication that
the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-78.

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2.

Background
Petitioner, a teenager, was convicted by jury of two counts of first degree murder

and an enhancement for use of a firearm under Idaho Code § 19-2520 in the Fifth Judicial
District Court in Blaine County, Idaho. Petitioner received two fixed life sentences, plus a
fifteen-year sentence enhancement.
Petitioner filed a post-conviction action on April 19, 2006, which resulted in a
finding of ineffective assistance of counsel regarding the failure to file a timely notice of
appeal from the judgment of conviction. She was then permitted to file a direct appeal. In
the direct appeal action, the Idaho Supreme Court affirmed the judgment on June 26,
2008, and the United States Supreme Court denied her petition for certiorari on
December 1, 2008.
Petitioner also appealed from the portions of the first post-conviction action that
were rejected by the state district court. As a result, her conviction was affirmed by the
Idaho Supreme Court on February 18, 2014. Petitioner also filed a successive postconviction petition in state court on April 9, 2012, which is still pending.
3.

Discussion of Claims
Petitioner brings several constitutional claims. Some of the claims were exhausted

during the direct appeal and first post-conviction action, and some are the subject of the
successive post-conviction action. Given that Petitioner is required by federal law to give
the state courts the first opportunity to adjudicate any newly-discovered claims and any

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claims that post-conviction counsel should have raised in state court,1 a stay of this action
is appropriate under the circumstances. See Blake v. Baker, 745 F.3d 977, 980-84 (9th
Cir. 2014). Petitioner has been steadily pursuing relief in the state court system. There is
no indication that Petitioner has intentionally delayed bringing her claims. Petitioner has
stated at least one potentially meritorious claim in her Petition. Relief in the state court
action would moot the claims in the federal action. Based upon all of the foregoing, the
Court will exercise discretion in favor of staying this case until Petitioner completes her
pending post-conviction cases.
While this case is stayed, the Court will administratively terminate it for internal
court administration purposes only. Administrative termination does not affect the filing
date of the petition, nor does it affect the rights of the parties in any way. Within 30 days
1

The Court is aware of the Idaho Supreme Court’s holding in Murphy v. State, 327 P.3d 365 (Idaho 2014). Prior to
Murphy, Idaho courts allowed petitioners to raise ineffective assistance of post-conviction counsel as a “sufficient
reason” under Idaho Code § 19–4908 to bring a successive post-conviction petition. See Palmer v. Dermitt, 635 P.2d
955, 959-60 (Idaho 1981). In Murphy, the Idaho Supreme Court relied upon Coleman v. Thompson, 501 U.S. 722
(1991), for the general proposition that there is no federal constitutional right to post-conviction counsel, but it did
not discuss the new exception to that case, which permits a petitioner to assert ineffective assistance of initial postconviction counsel as cause to excuse the procedural default of claims of ineffective assistance of trial or appellate
counsel. See Martinez v. Ryan, 132 S.Ct. 1309 (2012); Trevino v. Thaler, 133 S.Ct. 1911 (2013); Nguyen v. Curry,
736 F.3d 1287, 1293 (9th Cir.2013) (applying Martinez to underlying claims of ineffective assistance of appellate
counsel). Martinez v. Ryan created an exception upon which the Murphy court relied.

The practical effect of the Murphy holding may be that the state courts have unknowingly relinquished the
opportunity to be first to adjudicate ineffective assistance of trial counsel and direct appeal counsel claims that were
not properly raised due to ineffective assistance of post-conviction counsel during the first post-conviction action,
because Martinez v. Ryan opened the door to such claims for the first time in twenty years after Coleman was
decided. If the state courts will no longer consider whether the ineffective assistance of post-conviction counsel
prevented a petitioner’s claims from being raised properly (or at all) in the first post-conviction proceeding, the
federal courts will be required to consider both issues (ineffective assistance of post-conviction counsel as cause,
and the merits of ineffective assistance of trial and direct appeal counsel claims) de novo, including holding de novo
hearings where necessary. The federal courts are reluctant to take this course of action in federal habeas corpus
proceedings, preferring to have these issues heard first in state court, out of comity and deference to the state’s
strong interest in its own criminal cases.

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after Petitioner=s currently-pending state court action is completed, Petitioner may request
that the Clerk of Court reopen this case if she desires to proceed. The parties shall not file
anything further in this case while they are awaiting completion of the currently-pending
state court action.

ORDER
IT IS ORDERED:
1. Petitioner=s Motion to Stay and Abey (Dkt. 5) is GRANTED.
2. This case is STAYED pending completion of Petitioner=s post-conviction action
in state court.
3. This case is administratively terminated for internal court administration purposes
only. Administrative termination does not affect the filing date of the petition, nor
does it affect the rights of the parties in any way. Within 30 days after Petitioner=s
currently-pending state court action is completed, Petitioner may request that the
Clerk of Court reopen this case if she desires to proceed. The parties shall not file
anything further in this case while they are awaiting completion of the currentlypending state court action.
DATED: December 16, 2014

Honorable Candy W. Dale
United States Magistrate Judge
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