Opinion
Case No. CV01-0001-S-EJL
August 30, 2002
ORDER
Pending before the Court in this habeas corpus matter are Respondent's Motion for Summary Judgment (Docket No. 20) and Respondent's Motion to Take Judicial Notice (Docket No. 22). The Clerk of Court previously sent Petitioner a copy of the Notice to Pro Se Litigants of the Summary Judgment Rule Requirements. The Court allowed Petitioner an extension of time within which to file a supplemental response to the Motion.
Having fully reviewed the record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Id. L. R. 7.1(b). Accordingly, the Court enters the following Order.
I. BACKGROUND
In December 1997, Petitioner was convicted of lewd conduct with a minor after jury trial in the Fourth Judicial District Court of the state of Idaho. Petitioner was sentenced to a fixed term of twenty years, with an indeterminate term of life.
After conviction, Petitioner, through counsel, appealed his case. The appeal was assigned to the Idaho Court of Appeals, which affirmed the judgment and sentence on March 22, 1999. Petitioner did not file a Petition for Review with the Idaho Supreme Court.
Petitioner next filed a Petition for Post-Conviction Relief. The state district court issued a Notice of Intent to Summarily Dismiss, warning Petitioner that he must file a reply within twenty days in order to avoid dismissal. Petitioner sought, but was denied, an extension of time to gather evidence. He failed to file a reply, and the action was dismissed. Petitioner filed a Notice of Appeal. The Idaho Supreme Court gave Petitioner several opportunities to file a conforming brief, but Petitioner did not do so. Petitioner's appeal was then dismissed.
Petitioner next filed this federal habeas corpus action, bringing the following claims;
(1) He was unable to intelligently aid in his defense because of his use of Phen-Fen (a diet drug), lack of sleep, and a bad cold.
(2) His attorney rendered ineffective assistance of counsel by lying to him about the maximum sentence.
(3) Judge Bail was prejudiced against him.
(4) He was under duress when arrested, and so certain tapes used in evidence should have been suppressed.
(5) The State was "in default" in his criminal action.
In the Motion for Summary Judgment at issue, Respondent argues that Petitioner's claims are procedurally defaulted, and that he has failed to show cause or prejudice or a miscarriage of justice in order to excuse his procedural default. Petitioner opposes the Motion.
II. MOTION TO TAKE JUDICIAL NOTICE
Preliminarily, Respondent has requested that the court take judicial notice of the state court record in this matter. Petitioner is not opposed to the request. Respondent's request is an appropriate one in this habeas corpus action, as the state court record is necessary to the determination of whether Petitioner is entitled to habeas corpus relief. See Rule 5, Rules Governing Section 2254 Cases. Accordingly, the Motion shall be granted.
III. MOTION FOR SUMMARY JUDGMENT
A. Standard of Law
The Federal Rules of Civil Procedure apply to habeas corpus actions except where application of the rules would be inconsistent with established habeas practice and procedure. Rule 11, Rules Governing Section 2254 Cases. Accordingly, summary judgment motions are appropriate in habeas corpus proceedings where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Blackledge v. Allison, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 1632-33 (1977).
Title 28 U.S.C. § 2254 provides that beforc a habeas petitioner may present an issue for federal court review, he must first have presented it, by any available procedure. to the highest state court for review. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court may deny the claim on its merits, but it cannot otherwise grant relief on such unexhausted claims. 28 U.S.C. § 2254 (b).
State remedies are considered exhausted but procedurally defaulted, where, due to the petitioner's or his counsel's fault, no state remedies are available to him at the time he files his federal habeas petition. In order for a claim of procedural default to preclude federal review of a habeas petitioner's claim, the last state court issuing a reasoned decision must have clearly and unequivocally relied upon the procedural default as an independent and adequate ground for denying relief. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989); Ford v. Georgia, 498 U.S. 411, 422-24, 111 S.Ct. 850, 856-58 (1991).
"`In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default.'" Martinez v. Klauser, 266 F.3d 1091, 1093-94 (9th Cir. 2001) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). The State bears the ultimate burden of proving the adequacy of a state procedural bar to preclude federal habeas relief. Bennett v. Mueller, 296 F.3d 752 (9th Cir. 2002); Hill v. Roe, 298 F.3d 796 (9th Cir. 2002).
B. Discussion
The Court will review Petitioner's claims to determine whether each has been properly exhausted in the state court system.
1. Plaintiffs' claim that he was unable to intelligently aid in his defense because of his use of Phen-Fen (a diet drug), lack of sleep, and a bad cold
Plaintiffs first claim is that he was unable to intelligently aid in his defense because of his use of Phen-Fen (a diet drug), lack of sleep, and a bad cold. In his direct appeal, Plaintiff presented a similar, but different, legal theory, asserting that his statements to Detective Ken Smith should have been suppressed because of his use of Phen-Fen and lack of sleep. After the Court of Appeals rejected this claim, Petitioner failed to tile a Petition for Review with the Idaho Supreme Court.
Petitioner also attempted to bring a similar suppression of evidence issue in his post-conviction action. The state district court rejected it as an issue which should have been brought on direct review. Petitioner filed a Petition for Review with the Idaho Supreme Court, but he failed to file a brief which conformed to the Idaho Appellate Rules. As a result, his Petition was dismissed without consideration of the merits.
This claim is procedurally defaulted for several distinct reasons. First, Petitioner is now asserting a new legal theory which was not presented in state court. In state court, he framed the claim as a suppression of evidence issue. Here, he frames it as a claim that he was unable to intelligently aid in his defense.
Second, while Petitioner presented a similar claim to the Idaho Court of Appeals on direct review, he failed to present it to the Idaho Supreme Court, and it is now too late to do so. See O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732.
Third, Petitioner attempted to bring this claim in a post-conviction action, but the state district court determined that it was procedurally improper to do so, as it should have been brought on direct appeal. When a state court "decline[s] to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement," a federal court may not address the merits of such claims if the state court had an adequate and independent basis for its procedural ruling. Coleman v. Thompson, 501 U.S. 722, 729, 730, 111 S.Ct. 2546 (1991) (internal citation omitted). Idaho law is clear that post-conviction is not a substitute for direct appeal. This Court finds no indication that the Idaho courts did not regularly apply this rule at the time during which Petitioner's action was pending. Idaho Code § 19-4901(b); Whitehawk v. State, 116 Idaho 831, 832, 780 P.2d 153, 154-55 (Ct.App. 1989) ("An application for post-conviction relief is not a substitute for an appeal. I.C. § 19-4901(b). Generally speaking, a claim or issue which was or could have been raised on appeal may not be considered in post-conviction proceedings. Id."). Neither is there any indication that the procedural basis for the court's ruling was not based solely on state law.
Fourth, Petitioner failed to file a reply to the state district court's Notice of Intent to Dismiss. Under Idaho post-conviction relief procedures, a petitioner waives the right to challenge an order of the trial court dismissing a post-conviction relief petition if he fails to respond to the trial court's notice of intent to dismiss. Sabin v. State, 129 Idaho 257, 923 P.2d 502, (Ct.App. 1996); Fox v. State, 129 Idaho 881, 934 P.2d 947 (Ct.App. 1997); Chavarria v. State, 131 Idaho 446, 958 P.2d 603 (Ct.App. 1998). This procedural bar is based upon the long-standing rule in Idaho that issues not raised before the trial court may not be raised on appeal. Sabin, 129 Idaho at 257, 923 P.2d at 503.
Fifth, during the post-conviction process, Petitioner raised new issues for the first time in his brief supporting his Petition for Review, which is procedurally improper, such as the part of his claim that "a bad cold" prevented his statements from being voluntary.
The United States Supreme Court has determined that, for purposes of exhaustion, submitting a new claim to a state's highest court on discretionary review does not constitute "fair presentation." Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060 (1989); see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Sixth, while Petitioner filed a Petition for Review of the post-conviction dismissal with the Idaho Supreme Court, he never filed a conforming brief, and thus his Petition was dismissed without consideration of the merits. The procedural history of that appeal is as follows.
On May 23, 2000, Petitioner filed a timely Notice of Appeal from the dismissal of his Post-Conviction Petition. On October 11, 2000. the Idaho Supreme Court notified Smith that his appellant's brief had to be filed by November 9, 2000. Pctitioner never filed a conforming brief. Rather, the following sequence of events occurred.
Petitioner filed the following nonconforming briefs to support his Petition for Review: a "Brief and Added Case Law" dated June 10, 2000; a "Closing Brief to Court of Appeals for State of Idaho," dated September 18, 2000, and an "Amended and Additional Briefs Also Case Laws," dated September 19, 2000. See State's Exhibit D-10.
The "Brief and Added Case Law" document contains two pages of allegations and argument and three pages of legal citations, including case holdings. The "Closing Brief" contains two pages of allegations and arguments, with no legal references. The "Amended and Additional Briefs" is an eight-page document which is divided into eight different sections. None of these documents contains a table of contents, table of authorities, a statement of the case, or a list of the issues to be addressed by the Court. The briefs do not cite to any particular portions of the record. The issues in the briefs do not clearly reference the issues in the Post-Conviction Petition. For example, Petitioner argues that his former attorney and witness Christine Bowman should be required to undergo "narcoanalysis-hypnosis" to show that they were untruthful and to show that the attorney and the trial judge should be disbarred. Christine Bowman was not mentioned in the Post-Conviction Petition at all. Petitioner also brings up, for the first time, his belief that his bad cold affected the voluntariness of his statements to Officer Smith.
Idaho Appellate Rule 35(a) provides as follows:
Appellant's Brief. The brief of the appellant shall contain the following divisions under appropriate headings:
(1) Table of Contents. A table of contents, with page references, which shall include an outline of the Argument section of the brief.
(2) Table of Cases and Authorities. A table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.
(3) Statement of the Case. (i) A statement of the case indicating briefly the nature of the case. (ii) The course of the proceedings in the trial or the hearing below and its disposition. (iii) A concise statement of the facts.
(4) Issues Presented on Appeal. A list of the issues presented on appeal, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of the issues should be short and concise, and should not be repetitious. The issues shall fairly state the issues presented for review. The statement of issues presented will be deemed to include every subsidiary issue fairly comprised therein.
(5) Attorney Fees on Appeal. If the appellant is claiming attorney fees on appeal the appellant must so indicate in the division of issues on appeal that appellant is claiming attorney fees and state the basis for the claim.
(6) Argument. The argument shall contain the contentions of the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the transcript and record relied upon.
(7) Conclusion. A short conclusion stating the precise relief sought.
On October 20, 2000, the Idaho Supreme Court notified Petitioner by letter that Petitioner's "Amended and Additional Briefs Also Case Laws" did not comply with applicable appellate rides and could not be filed. The Idaho Supreme Court returned the brief to Petitioner, and enclosed a copy of the applicable rules. Petitioner was again notified that his brief must be filed in proper form on or before November 9, 2000.
On October 23, 2000, the Supreme Court issued an order granting Petitioner's Motion to File a Handwritten Brief, allowing him to file a brief and a reply brief in handwritten form. On October 27, 2000, Petitioner wrote to the Clerk of the Idaho Supreme Court, enclosing another motion seeking permission to file a nonconforming brief. On November 2, 2000, the Clerk of Court wrote back to Petitioner notifying him that his motion to file a handwritten brief had been granted, and that if a brief was not filed in compliance with Rules 34 and 35, the appeal would be dismissed. On November 7, 2000, Petitioner filed another Motion for Leave to File Non-Conforming Brief and Motion for 30-Day Extension to hear Motion on Non-Conforming Brief. On November 14, 2000, the Idaho Supreme Court issued an Order explaining to Petitioner that his Brief was not in compliance with Idaho Appellate Rules 34(a)(b)(c) and 35(a). The Order ordered Petitioner to file a complying brief within 21 days after November 14, 2000, the date of the Order.
Rule 34 governs the number of copies to be filed, the length of briefs, and the time limits for filing briefs. Rule 35 governs the content and arrangement of brief's (see previous footnote). Neither of these rules governs the typewritten or handwritten nature of the brief. That is governed by Rule 32. Prior to 2001, Rule 32 did not allow for the filings of handwritten briefs. Prisoners, as Petitioner did in this matter, had to move the Court for permission to file a handwritten brief, in 2001, the Rule was amended to allow prisoners to file handwritten briefs.
On November 17, 2000, Petitioner filed a "Motion to Orally Argue for Non Conform Brief." In that Motion, Petitioner explained that he was not feeling well and that it would take him about 6 months to rewrite the brief to conform to Rules 34 and 35. On December 19, 2000, the Idaho Supreme Court denied Petitioner's Motions and dismissed his appeal for failure to file a brief
This Court agrees with Respondent that the facts and procedural posture of this case are much like those in Zichko v. Idaho, 247 F.3d 1015 (9th Cir. 2001). In that case, Zichko's appeal was dismissed by the Idaho Court of Appeals for failure to comply with Idaho Appellate Rule 35 (a)(4) and (6). Thereafter, Zichko failed to file a Petition for Review.
The Ninth Circuit Court of Appeals agreed with the federal district court that Zichko's claims on appeal were procedurally defaulted for his failure to comply with the Idaho Appellate Rules and failure to present his claims to the Idaho Supreme Court. That court further determined that failing to comply with the Idaho Appellate Rules was an adequate and independent state basis for the default.
In its own research, this Court found two exceptions to the rule that appellants are required to comply with the Idaho Appellate Rules governing the form and content of briefs. Neither exception supports Petitioner's position that the rules applied to his case were not adequate.
The first exception is that the Supreme Court seems to have regularly granted indigent prisoners who do not have access to a typewriter authorization to submit a handwritten brief, waiving the typewriting requirement of Rule 32. This practice was codified in 2001 in an amendment to Rule 32, which now reads: "Prisoners incarcerated or detained in a state prison or county jail may file documents that are legibly hand-printed in black ink, in whole or in part, that otherwise conform to the requirements of these rules" (emphasis added). Here, the Idaho Supreme Court actually gave Petitioner several opportunities to file a handwritten, but otherwise conforming, brief. The Supreme Court also made it clear to Petitioner in several letters that the brief must be conforming, other than being handwritten. Petitioner failed to present an appropriate brief.
Second, Idaho case law demonstrates that, from time to time, the Idaho Supreme Court treats Idaho Appellate Rule 35(a)(4) in a "relaxed" manner, disregarding a party's failure to present issues in the "statement of issues" section if the issues are supported by argument in the briefs. State v. Prestwich, 116 Idaho 959, 961, 783 P.2d 298, 300 (1989), overruled on other grounds, State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992); State v. Crowe, 131 Idaho 109, 952 P.2d 1245 (1998).
In this matter, even if this exception would have been applied, Petitioner's brief was nonconforming in several other ways and was subject to rejection for those reasons. The Court found no case in which the Idaho appellate courts considered the content of a petitioner's brief, even though it had multiple nonconforming features. In total, the Court's research indicates that the procedural bar upon which the dismissal is based is an adequate state ground, as in Zichko.
There is no hint in any of the Idaho Supreme Court's orders issued in Petitioner's case that the procedural default was based upon any federal ground, and therefore the basis for the procedural default is also independent. For all of the foregoing reasons, Petitioner's first claim is procedurally defaulted.
2. Petitioner's claim that his attorney rendered ineffective assistance of counsel by lying to him about the maximum sentence
Petitioner asserts that his attorney lied to him about the maximum sentence he could receive if he went to trial. Although Petitioner's exact claim is unclear, it appears that he is alleging that his attorney represented to him that the maximum sentence was 5 years, which is what the prosecutor offered as recommendation for the fixed portion of a sentence in a plea bargain arrangement.
Petitioner presented this claim as an ineffective assistance of counsel claim in his state Post-Conviction Relief Petition. The state district court determined that, even if counsel had failed to tell Petitioner of the maximum sentence, he had been informed of the maximum sentence at his arraignment, and so no prejudice had been shown.
Because Petitioner failed to pursue his post-conviction appeal in a proper manner before the Idaho Supreme Court, as explained herein above, this claim is procedurally defaulted.
3. Petitioners' claim that Judge Bail was prejudiced against him
During the course of his post-conviction action, Petitioner asserted that Judge Bail was prejudiced against him and should disqualify herself from the case. Judge Bail rejected the assertion that she was prejudiced against him because Petitioner's only factual allegation in support thereof was that she had acted more cordially to Petitioner's first attorney than to his second attorney.
Petitioner did not include in his Notice of Appeal the issue of the Motion for Disqualification of the Judge. Petitioner did not file a conforming brief with the Idaho Supreme Court, and therefore, never properly presented this claim to the Idaho Supreme Court. As a result, it is procedurally defaulted.
4. Petitioner's claim that he was under duress when arrested and that certain tapes used in evidence should have been suppressed
Petitioner has never presented to the Idaho Supreme Court his claim that he was under duress when he was arrested and that tapes of his conversations during that time period should have been suppressed. This claim is procedurally defaulted for that reason.
Petitioner presented somewhat similar arguments on direct appeal, which were rejected by the Idaho Court of Appeals. In his Post-Conviction Petition, Petitioner attempted to bring a similar claim, asserting that he had a "lack of opportunity to assess the gravity of the charges," when he was arrested. The state district court determined that Petitioner's attempt to present this issue on Post-Conviction was "an attempt to resuscitate arguments which were considered and rejected on appeal." Petitioner failed to appeal his Post-Conviction dismissal in a proper way, as discussed above. For all of these reasons, the Court concludes that this claim is procedurally defaulted,
5. Petitioner's claim that the State was Ivin default in his criminal action.
During the post-conviction process, the State did not immediately respond to Petitioner's Petition, but waited a number of weeks before requesting an extension of time to respond. Petitioner did not file for default in the interim. The state district court granted the State's motion for an extension of time to respond. Petitioner later asserted that he was entitled to default judgment. The state district court rejected that contention, citing its statutory authority to extend the deadlines in post-conviction actions and Petitioner's failure to take any action before the extension was sought and granted. Petitioner failed to properly bring this claim before the Idaho Supreme Court. As a result, it is procedurally defaulted.
C. Summary and Conclusion
For the reasons set forth herein above, the Court concludes that all of Petitioner's claims are procedurally defaulted. The Court warned Petitioner in its initial review order that, if his claims were determined to be procedurally defaulted, his only opportunity to make a cause and prejudice or miscarriage of justice argument would be in response to Respondent's dispositive motion. Both the Court and Respondent have informed Petitioner of the legal standards for making such showings.
Petitioner has failed to squarely address cause and prejudice or a miscarriage of justice in his papers. Notwithstanding his failure, the Court has reviewed the record and has found nothing which would constitute cause and prejudice or a miscarriage of justice.
For example, Petitioner argues that his counsel failed to consult him prior to filing his direct appeal, and that the state district court failed to grant a 120-day extension of time for him to gather additional evidence before dismissing his Post-Conviction Petition. While these allegations might amount to cause, Petitioner has failed to show any prejudice, and has failed to bring forward any evidence to support his claims in the years following his direct appeal and post-conviction action. Similarly, while Petitioner continues to proclaim his innocence, he has not met the Schlup v. Delo miscarriage of justice standard with any exculpatory evidence. As a result of all of the foregoing, the Court shall dismiss Petitioner's Petition with prejudice.
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995).
Should Petitioner wish to appeal this Order, he must first request a certificate of appealability from this Court, as required by law. See 28 U.S.C. § 2253 (c); Fed.R.App.P. 22(b). When the denial or dismissal of a habeas corpus petition is based upon a procedural ground, a certificate of appealability should be issued only where a prisoner shows (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 477, 120 S.Ct. 1595, 1601 (2000).
28 U.S.C. § 2253 (c) provides, in pertinent part:
(1) Unless a circuit justice or judge issues a certificate of appealability from —
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court . . .
(2) A certificate of appealability may issue under paragraph (1) only if the Applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
Fed.R.App.P. 22(b) provides that "In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, . . . the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253 (c) . . .
Petitioner need not file a motion to proceed in forma pauperis on appeal, because his current status is sufficient, unless the Court of Appeals directs him to do otherwise. Should Petitioner wish to request appointment of counsel, he shall do so in the Court of Appeals, and not in this Court.
IV. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Respondent's Motion to Take Judicial Notice (Docket No. 22) is GRANTED.
IT IS FURTHER HEREBY ORDERED that Respondent's Motion for Summary Judgment (Docket No. 20) is GRANTED. Petitioner's Petition is dismissed with prejudice.