Rozajewski v. Castleton

Filing 20

MEMORANDUM DECISION AND ORDER Respondent's Motion for Partial Summary Dismissal (Dkt. 17 ) is GRANTED. All of the claims in the Petition are DISMISSED with prejudice. The Court does not find its resolution of this habeas matter to be reasonabl y debatable, and a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If Petitioner wishes to appeal, he must file a timely notice of appeal with the Clerk of Court. Petitione r may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. 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

STEPHEN PHILLIP ROZAJEWSKI,
Case No. 4:16-cv-00056-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
ROSS CASTLETON,
Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Stephen Phillip Rozajewski (“Petitioner” or “Rozajewski”), challenging
Petitioner’s Canyon County conviction of unlawful possession of a firearm. (Dkt. 3.)
Respondent has filed a Motion for Summary Dismissal. (Dkt. 17.) The Motion is now
ripe for adjudication.
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 11.)
Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).

MEMORANDUM DECISION AND ORDER - 1

Accordingly, the Court enters the following Order granting Respondent’s Motion
and dismissing this case with prejudice.
BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 16.) See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). The facts underlying
Petitioner’s conviction are set forth clearly and accurately in State v. Rozajewski, 359
P.3d 1058 (Idaho Ct. App. 2015). The facts will not be repeated here except as necessary
to explain the Court’s decision.
Investigating officers discovered evidence against Petitioner in a search of
Petitioner’s rented room in a residence owned by a probationer. Id. at 1059. Officers had
obtained a warrant for the search of Petitioner’s room, but—as the trial court later
determined—the officer obtaining the warrant made some statements with reckless
disregard for the truth, and omitted other information, during the warrant application
process. (State’s Lodging A-1 at 80-82.) Following a hearing held pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), the trial court denied Petitioner’s motion to suppress the
evidence, concluding that the false statements and omissions were not material to the
magistrate judge’s finding of probable cause. (Id. at 81-83.)
Petitioner entered a conditional no-contest plea to one count of unlawful
possession of a firearm and was sentenced to a unified term of five years in prison with
four years fixed. (Id. at 101-02.) Petitioner appealed, asserting that the trial court erred in
denying his motion to suppress. (State’s Lodging B-1; B-3.) The Idaho Court of Appeals
MEMORANDUM DECISION AND ORDER - 2

affirmed the trial court’s determination that the false statements and omissions were not
material, and the Idaho Supreme Court denied review. (State’s Lodging B-4, B-7.)
Petitioner filed a petition for state post-conviction relief, contending, among other
things, that his sentence was excessive “for the first offense of this nature.” (State’s
Lodging C-1 at 5.) The stated district court dismissed the petition. (Id. at 85-91.)
Although Petitioner initially appealed, he later filed a motion to dismiss that appeal.
(State’s Lodging D-1.) The motion was granted and the appeal dismissed. (State’s
Lodging D-2.)
While his initial post-conviction petition was pending, Petitioner filed a successive
petition for post-conviction relief, asserting that his trial counsel rendered ineffective
assistance in failing to move to modify his sentence under Idaho Criminal Rule 35.
(State’s Lodging E-1 at 4-5.) The trial court dismissed the successive petition. (Id. at 3139.) Petitioner appealed, but—in the same motion to dismiss the appeal in his initial postconviction case—he moved to dismiss his appeal in the successive petition case. (State’s
Lodging F-2.) The motion was granted and the appeal dismissed. (State’s Lodging F-3.)
In the instant federal Petition, Petitioner asserts five claims. The first four claims
all challenge the denial of Petitioner’s motion to suppress. Claim 1 asserts specifically
that the Franks hearing on the motion to suppress was not conducted properly because “it
is inappropriate for a statement, once it is determined to be false, to not be omitted.”
(Pet., Dkt. 3, at 5.) Claim 2 asserts that the officer who obtained the warrant to search
Petitioner’s room committed perjury during the warrant application process. (Id. at 6.)
Claim 3 alleges that the warrant was issued without probable cause and that there was no
MEMORANDUM DECISION AND ORDER - 3

“nexus” linking Petitioner to the “items in the common area or some showing of criminal
activity.” (Id. at 7.) Claim 4 alleges that Petitioner’s right to privacy was violated by the
search of his room and the seizure of the evidence. (Id. at 8.)
Claim 5 of the Petition asserts that Petitioner’s sentence was excessive or
vindictive, but it does not cite a federal basis for relief. (Id. at 9.) For this reason, the
Court earlier presumed that Claim 5 was intended to be an excessive sentence claim
under the Eighth Amendment. (Initial Review Order, Dkt. 7, at 2.) Petitioner has not
objected to the Court’s presumption.
The Court previously reviewed the Petition and allowed Petitioner to proceed on
his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action,
(2) were timely filed in this Court, and (3) were either properly exhausted in state court or
subject to a legal excuse for any failure to exhaust in a proper manner.” (Id. at 2-3.)
Respondent now moves to dismiss the Petition, asserting that all of the claims are
noncognizable and that Claim 5 is procedurally defaulted. (Dkt. 17.)
DISCUSSION
1.

Standard of Law Governing Summary Dismissal
The Rules Governing § 2254 Cases (“Habeas Rules”) authorize the Court to

summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the
face of the petition and any attached exhibits,” as well as those records subject to judicial
notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see
Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.1. Where appropriate, a respondent may

MEMORANDUM DECISION AND ORDER - 4

file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599,
602 (9th Cir. 1989).
2.

Claims 1 through 4 Are Noncognizable in this Federal Habeas Proceeding
Because Claims 1 through 4 assert violations of the Fourth Amendment, they are

barred by the doctrine of Stone v. Powell, 428 U.S. 465 (1976).
In Stone, the United States Supreme Court held that, so long as the state provided
the petitioner an opportunity for full and fair litigation of his Fourth Amendment claim in
state court, a federal court cannot grant habeas corpus relief on the ground that evidence
was obtained in violation of the Fourth Amendment. 428 U.S. at 494. The Stone rule is
based on the principle that the exclusionary rule is “not a personal constitutional right”
but is instead a practical way to deter police conduct that violates the Fourth Amendment.
Id. at 486. The social costs of the exclusionary rule are heavy: the rule “deflects the
truthfinding process and often frees the guilty.” Id. at 490. On collateral review of a
criminal conviction, “the contribution of the exclusionary rule, if any, to the effectuation
of the Fourth Amendment is minimal, and the substantial societal costs of application of
the rule persist with special force.” Id. at 494-95.
To determine whether a petitioner had a full and fair opportunity to challenge his
Fourth Amendment claim in state court, the Court “inquire[s] into the adequacy and
fairness of available state court procedures for the adjudication of Fourth Amendment
claims.” Sanna v. Dipaolo, 265 F.3d 1, 8 (1st Cir. 2001). If the Court determines that the
state court procedures are adequate, the inquiry ends there. Id. at 8-9. That is, “[s]o long
as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by
MEMORANDUM DECISION AND ORDER - 5

means of such a set of procedures, a federal habeas court lacks the authority, under Stone,
to second-guess the accuracy of the state court’s resolution of those claims.” Id. at 9.
Stated another way, “[t]he relevant inquiry is whether petitioner had the opportunity to
litigate his claim, not whether he did in fact do so or even whether the claim was
correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Petitioner
bears the burden of establishing that the state courts did not consider his Fourth
Amendment claim fully and fairly. Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977).
Here, Petitioner had a chance to litigate his Fourth Amendment claims, and he did
so by filing a motion to suppress. The Idaho Court of Appeals considered his claims on
appeal and rejected them. Petitioner had a full and fair opportunity to present his Fourth
Amendment claims to the Idaho state courts. Therefore, Claims 1 through 4 are
noncognizable in this federal habeas corpus proceeding.
3.

Construed as an Eighth Amendment Claim, Claim 5 Is Subject to Dismissal
as Procedurally Defaulted
As explained above, the Court construes Claim 5 as a claim that Petitioner’s

sentence was excessive, in violation of the Eighth Amendment to the Constitution.1
A.

Procedural Default Standards of Law

A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s
established appellate review process, fairly presenting all constitutional claims to the state
1

If Claim 5 was construed as an excessive sentence claim under Idaho law—or on any basis other
than federal law—it would not be cognizable. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal
habeas corpus relief does not lie for errors of state law.”).

MEMORANDUM DECISION AND ORDER - 6

courts so that they have a full and fair opportunity to correct alleged constitutional errors
at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have
presented all of his federal claims at least in a petition seeking review before that court.
Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts
and the legal theories upon which the federal claim is based. Gray v. Netherland, 518
U.S. 152, 162-63 (1996).
The mere similarity between a federal claim and a state law claim, without more,
does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). General references in state court to “broad constitutional
principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise
insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear
that, for proper exhaustion, a petitioner must bring his federal claim before the state court
by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d
666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).
When a habeas petitioner has not fairly presented a constitutional claim to the
highest state court, and it is clear that the state court would now refuse to consider it
because of the state’s procedural rules, the claim is said to be procedurally defaulted.
Gray, 518 U.S. at 161-62. Procedurally defaulted claims include those within the
following circumstances: (1) when a petitioner has completely failed to raise a claim
before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully
and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts
MEMORANDUM DECISION AND ORDER - 7

have rejected a claim on an adequate and independent state procedural ground. Id.;
Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750
(1991).
If a petitioner’s claim is procedurally defaulted, a federal district court cannot hear
the merits of the claim unless the petitioner meets one of two exceptions: (1) a showing
of adequate legal cause for the default and prejudice arising from the default, or (2) a
showing of actual innocence, which means that a miscarriage of justice will occur if the
constitutional claim is not heard in federal court. Murray v. Carrier, 477 U.S. 478, 488
(1986); Schlup v. Delo, 513 U.S. 298, 329 (1995). Neither an assertion of cause and
prejudice nor an assertion of actual innocence under Schlup is an independent
constitutional claim. Rather, these are federal procedural arguments that, if sufficiently
established by the petitioner, allow a federal court to consider the merits of an otherwise
procedurally-defaulted constitutional claim.
B.

Claim 5 Is Procedurally Defaulted

Petitioner raised Claim 5 in his initial post-conviction petition. However, because
he voluntarily dismissed his appeal of the dismissal of that petition, he failed to present
Claim 5 to the Idaho appellate courts. Because it is now too late to do so, Claim 5 is
procedurally defaulted. See Gray, 518 U.S. at 161-62.
C.

Petitioner Has Not Established a Legal Excuse for the Default of Claim 5

To the extent Petitioner argues that his motion to dismiss his post-conviction
appeal was based on the lack of counsel or ineffective counsel during post-conviction
review proceedings, that argument is foreclosed by Coleman v. Thompson, 501 U.S. 722,
MEMORANDUM DECISION AND ORDER - 8

752 (1991) (establishing the general rule that any errors of counsel during a postconviction action cannot serve as a basis for cause to excuse a procedural default).
Although the Supreme Court has carved out an exception to the Coleman rule, that
exception applies only to ineffective assistance of counsel claims—and Claim 5 is not
such a claim. See Martinez v. Ryan, 566 U.S. 1, 9 (2012) (holding that lack of counsel, or
ineffective counsel, during “initial-review collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective assistance at trial”); Hunton v.
Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that Martinez does not apply to
claims under Brady v. Maryland and noting that Martinez applies only to claims of
ineffective assistance of counsel). Thus, Petitioner has not shown cause and prejudice for
the default of Claim 5.
Petitioner contends that he is entitled to take advantage of the fundamental
miscarriage of justice exception (Dkt. 19 at 9-10), which—as discussed above—excuses
the procedural default of a claim if the petitioner shows that he is actually innocent.
Murray v. Carrier, 477 U.S. at 496. Actual innocence in this context “means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998).
In asserting actual innocence, a petitioner must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324. A procedurally defaulted claim may be heard
under the miscarriage of justice exception only if “in light of all of the evidence, ‘it is
MEMORANDUM DECISION AND ORDER - 9

more likely than not that no reasonable juror would have found [Petitioner] guilty beyond
a reasonable doubt.’” United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013)
(quoting Schlup, 513 U.S. at 327). Stated another way, it must be more likely than not
that every reasonable juror would vote to acquit.
This is an extremely demanding standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
innocence “does not turn on discrete findings regarding disputed points of fact, and ‘[i]t
is not the district court’s independent judgment as to whether reasonable doubt exists
that the standard addresses.’” House, 547 U.S. at 539-40 (quoting Schlup, 513 U.S. at 329
(alteration in original)). Rather, the court must “make a probabilistic determination about
what reasonable, properly instructed jurors would do.” Schlup, 513 U.S. at 329.
Petitioner does not present any credible evidence that he did not unlawfully
possess a firearm—he merely continues to assert that the search warrant was not
supported by probable cause. (Dkt. 19 at 10.) This is insufficient to establish actual
innocence under Schlup v. Delo. Petitioner has not met the extraordinarily high threshold
required to invoke the miscarriage of justice exception.
For the foregoing reasons, Petitioner has not established a legal excuse for the
procedural default of Claim 5.

MEMORANDUM DECISION AND ORDER - 10

CONCLUSION
Claims 1 through 4 are subject to dismissal as noncognizable, and Claim 5 is
subject to dismissal as procedurally defaulted. Therefore, the Court will dismiss this
entire action with prejudice.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 17) is
GRANTED. All of the claims in the Petition are DISMISSED with
prejudice.

2.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If
Petitioner wishes to appeal, he must file a timely notice of appeal with the
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.

DATED: May 11, 2017

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 11