Opinion
Case No. CV99-0246-S- EJL
June 26, 2000
ORDER
This habeas corpus action challenges various aspects of Petitioner's sentencing. Currently pending before the Court are the following motions: (1) Respondent's motion for summary dismissal; (2) Petitioner's motion in opposition to motion for summary dismissal; (3) Petitioner's motion for reconsideration regarding the Court's dismissal of his "violation of oath of office" claim; (4) Petitioner's motion for contempt; (5) Petitioner's second motion for leave to proceed with production of documents; and (6) Petitioner's motion for an order for documents without cost.
Having fully reviewed the record, including the portions of the state record submitted by the parties, 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. MOTION FOR CONTEMPT
Petitioner requests that the Court hold Respondent in contempt for failing to file a reply to the motion for summary dismissal. Such a reply is optional. The Court's previous Order merely set forth the time limit within which Respondent's reply was to be filed if Respondent chose to file a reply. Respondent's motion for contempt is denied.
II. MOTION FOR SUMMARY DISMISSAL
A. Summary Judgment Standard
Respondent has filed a motion for summary dismissal, asserting that all of Petitioner's claims are procedurally defaulted. Petitioner has received a copy of the notice of summary judgment rule requirements. In addition, the Court previously advised Petitioner that he must make any cause and prejudice or miscarriage of justice arguments in his response to the motion for summary dismissal, because he would not be allowed a further opportunity to do so.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" where there is sufficient evidence to require the factfinder "to resolve the parties' differing versions of truth at trial," First National Bank of Arizona v. Cities Service Co., 391 U.s. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968), or where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberly Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A fact is "material" if it is relevant to an element of a claim or defense and if it might affect the outcome of the suit. Anderson, 477 U.S. at 247, 106 S.Ct. at 2510. In other words, whether a fact is material is determined by reference to the substantive law of the claim or defense. Id. Disputes over facts which are irrelevant or unnecessary will not preclude summary judgment. Id., 477 U.S. at 248, 106 S.Ct. at 2510.
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, 52 L.Ed.2d 136 (1977).
B. Exhaustion Requirement
28 U.S.C. § 2254(b) provides that before 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. The Supreme Court explained the requirement very simply in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999):
Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must 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.
The total exhaustion rule encourages state prisoners first to seek full relief in the state courts, as the state courts should be given the first opportunity to review all claims of constitutional error. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). Exhaustion is required for reasons of comity; that is, in a dual system of government, federal courts should not be able to overturn a state court conviction without first having afforded the state courts "the initial `opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). 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 an unexhausted claim. 28 U.S.C. § 2254(b).
C. Standard of Law Governing Procedural Default
State remedies are considered exhausted (though not properly exhausted), where a habeas applicant can show that, due to his own fault, there are no state remedies available to him at the time he files his habeas petition. Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir. 1992). If there are no state remedies available to a petitioner because either he failed to pursue them in state court, or he pursued them in state court but did so in a procedurally improper manner, the claims are considered "procedurally defaulted."
This case has been impliedly overruled by Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999) as it applies to cases arising from Arizona. Swoopes is not applicable here.
In other words, state remedies are considered exhausted and procedurally defaulted if the time to directly appeal state court judgments has long since lapsed and state post-conviction remedies are unavailable. Batchelor v. Cupp, 693 F.2d 859, 863 (9th Cir. 1982). Likewise, state remedies are considered exhausted and procedurally defaulted if a petitioner has actually asserted the claim in state court and had it denied on a procedural basis, for example, failure to file a claim within the statute of limitations period or attempting to raise a claim in a post-conviction or collateral relief petition which should have been raised on direct appeal. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991).
In order to bar federal habeas review, a state judgment must rest on "independent and adequate state procedural grounds." Ford v. Georgia, 498 U.S. 411, 422-24, 111 S.Ct. 850, 856-58, 112 L.Ed.2d 935 (1991). If the procedural bar rests on federal grounds or is intertwined with federal grounds, it is not an "independent" state ground, and a federal court may properly review the matter. To be an "adequate" state ground, the procedural bar must be one that is "firmly established and regularly followed" by the state courts. Ford, 498 U.S. at 423-24, 111 S.Ct. at 857-58 (quoting James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 1835-36, 80 L.Ed.2d 346 (1984)); see Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). If the procedural bar is not adequate and independent, then the state court procedure did not provide the petitioner with a fair opportunity to seek relief in state court, and withdrawal of a federal remedy in such a circumstance is not warranted. Harmon v. Ryan, 959 F.2d at 1462.
A state may "mandate a particular procedure to be used to the exclusion of other avenues of seeking relief `so long as the right of review is not foreclosed or unduly limited.'" Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987) (quoting Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir. 1976)). Where, as in Idaho, certain claims must be presented on direct review rather than in a post-conviction relief petition, "presenting an issue to the state's highest court via a statutorily deviating path will not exhaust state remedies." Id (citing Lindquist v. Garner, 770 F.2d 876, 878 (9th Cir. 1985)).
The Idaho appellate courts have made it clear that issues not raised in an initial appeal to the Idaho Court of Appeals may not be raised in a petition for review to the Idaho Supreme Court. Wood v. Wood, 124 Idaho 12, 855 P.2d 473 (Ct.App. 1993); Centers v. Yehezkely, 109 Idaho 216, 706 P.2d 105 (Ct.App. 1985). Similarly, 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, 103 L.Ed.2d 380 (1989); see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
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.
D. Showing Cause and Prejudice or a Miscarriage of Justice to Overcome Procedural Default
A habeas corpus petitioner whose claims are procedurally defaulted is not left without a remedy in federal court if he can making a showing that there is legitimate cause for his default and that he will suffer prejudice if his claim is not heard, or if he can show that he is actually innocent of the conviction or sentence and that a miscarriage of justice will occur if his claim is not heard.
To show "cause," an applicant must demonstrate that there is a legitimate excuse for the state court default. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). Ordinarily, the petitioner must show that some objective factor external to the defense impeded his or his counsel's efforts to comply with the state procedural rule at issue. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). For example, a petitioner can demonstrate cause by showing that the factual or legal basis for a claim was not reasonably available at the time of default, or that a state official's interference made compliance with state procedural rules impractical. Id. Similarly, a claim of ineffective assistance of counsel which rises to the level of a Sixth Amendment violation may constitute cause that excuses a procedural default, Murray v. Carrier, 477 U.S. at 488-89, 106 S.Ct. at 2644. However, the ineffective assistance claim must first be separately presented to the state's highest court for determination on the merits before it can serve as cause for the procedural default of another claim. 477 U.S. at 488-89, 106 S.Ct. at 2645-46 (internal citation omitted).
To demonstrate "prejudice," a petitioner must show that he suffered some type of actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). That is, a habeas petitioner bears "the burden of showing not merely that the errors [in his criminal proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting [the entire proceeding] with errors of constitutional dimension." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982).
If a petitioner cannot show cause and prejudice for his procedural default, he can still bring the claim in a federal habeas petition if he demonstrates that failure to consider the claim will result in a "fundamental miscarriage of justice." McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). In the context of sentencing, a miscarriage of justice can be shown if the applicant demonstrates that he is actually innocent of the sentence, which is a focus on factual innocence, not legal innocence. Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 25 18-19, 120 L.Ed.2d 269 (1992); Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986). Accordingly, a properly convicted defendant's claim of innocence is determined by his eligibility for the sentence imposed. Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir. 1991), cert denied, 506 U.S. 930, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992) ("A convicted defendant is eligible for any punishment within the discretion the legislature accords the sentencing body. One cannot say that the defendant is innocent of the sentence imposed if the defendant actually committed the necessary acts that would make him eligible for the particular punishment chosen).
Therefore, based upon the foregoing standards of law, the Court will now consider whether Petitioner's claims are procedurally defaulted, and, if so, whether Petitioner has shown either cause and prejudice to excuse his procedural default, or that a miscarriage of justice would occur if the Court did not hear his claims.
E. Discussion of Claims
1. Claim One: "The Trial Court ImoroDerlv Considered and Used in the Sentencing Process False. Speculative or Improper Information about Petitioner's Alleged Previous Criminal Activity"
Based upon the foregoing law, Petitioner's first claim-that the trial court improperly considered false, speculative or improper information about his alleged previous criminal activity in sentencing-is procedurally defaulted for several reasons. First, Petitioner did not present this claim in his direct appeal to the Idaho Court of Appeals. Rather, he presented it in a procedurally improper manner to the Idaho Supreme Court, in a petition for discretionary review after his direct appeal on other issues was unsuccessful. See Wood v. Wood, 124 Idaho 12, 855 P.2d 473 (Ct.App. 1993); Centers v. Yehezkely, 109 Idaho 216, 706 P.2d 105 (Ct.App. 1985); Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cit. 1994).
Second, he attempted to present the claim in a petition for post-conviction relief. This claim was rejected on the merits in the state district court's notice of intent to dismiss (which is not a final order for purposes of exhaustion). See Exhibit G to Petitioner's Petition for Writ of Habeas Corpus. Thereafter, Petitioner failed to timely respond to the notice of intent to dismiss, resulting in an order dismissing his petition on the basis of procedural default. See Exhibit H to Petitioner's Petition for Writ of Habeas Corpus. By failing to properly respond to the notice of intent to dismiss, Petitioner waived his right to appeal the dismissal of his petition. See 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). Petitioner made no showing that his procedural default is not based upon independent state grounds, or that this procedural rule is not firmly established and regularly applied in Idaho. This Court need not consider whether the Idaho Supreme Court improperly dismissed Petitioner's appeal as untimely for his failure to provide a copy of the prison mail log because, under Sabin, Petitioner waived his right to appeal altogether by not filing a timely response to the court's notice of dismissal.
Petitioner argues in his petition that the court's addressing of the merits of some of his claims in the notice of dismissal is the equivalent of the court entering a judgment or order on the merits. However, under the post-conviction statutory scheme, the notice simply notifies a petitioner that he needs to rebut the court's preliminary findings in his response in order to avoid summary dismissal. The final order actually denying post-conviction relief is issued after a petitioner rebuts or fails to rebut the preliminary findings in the notice of intent to dismiss.
In Petitioner's case, the court dismissed the petition on the basis of procedural default in its final order. Hence, the notice of dismissal cannot be considered the last "explained" order, which would allow further review. Cf. McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995) (claim not procedurally defaulted where, after noting the possibility of procedural default, the state supreme court went on to specifically reach the merits of the federal claim); Ylst v. Nunnemaker, 501 U.S. 797, 797-98, 111 S.Ct. 2590, 2592, 115 L.Ed.2d 706 (1991) (where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground; similarly, where the last reasoned opinion on the claim explicitly imposes a procedural default, it should be presumed that a later decision rejecting the claim did not silently disregard the bar and consider the merits).
Petitioner has not shown cause or prejudice to excuse his procedural default on this claim. In order to show that failure to present these issues on direct appeal was the result of ineffective assistance of counsel, Petitioner must first show that he already presented his ineffective assistance of counsel argument to the Idaho Supreme Court in a procedurally proper manner. Petitioner attempted to present this argument in his petition for review of his direct appeal to the Idaho Supreme Court. Such a presentation is contrary to Idaho law and does not constitute a fair presentation for exhaustion purposes. Petitioner also attempted to bring these issues in his post-conviction relief petition, which he then procedurally defaulted. Therefore, having failed to properly raise ineffective assistance of counsel in the Idaho Supreme Court on direct appeal. Petitioner cannot now assert ineffective assistance of counsel as cause for his default.
Petitioner wrongly argues that his ineffective assistance of counsel claim is not subject to a Strickland v. Washington analysis. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2069, 80 L.2d.2d 674 (1984), is applicable when counsel files an appeal on some issues, but omits other issues which Petitioner himself would have included. The case law to which Petitioner cites is applicable only when counsel fails to file an appeal altogether.
Neither can Petitioner use an argument of ineffective assistance of counsel in his post-conviction proceedings as cause, as there is no constitutional right to counsel in collateral proceedings. Poland v. Stewart, 169 F.3d 573, 588 (9th Cir. 1999). Petitioner has presented no other facts which would constitute cause.
Further, Petitioner has not shown that prejudice will occur if the Court does not hear his claim. In its notice of dismissal, the state district court clearly articulated the basis for its sentencing decision. Petitioner has provided nothing substantial to support his allegation that the Court considered false, speculative, or improper information in sentencing. On June 15, 2000, Petitioner filed an affidavit with the Court pointing to several inconsistencies in the presentence report. Several difficulties are immediately apparent with the affidavit. First, he has not shown that he presented these facts to the state court. In its notice of dismissal of the state court post-conviction relief petition, the court stated that Petitioner made three objections to the report, all of which the court abided by over objections of the State, and none of which concerned the issues he now brings in his affidavit. See Exhibit G to petition for writ of habeas corpus, at page 4. The transcript of the sentencing hearing also shows that counsel privately conferred with Petitioner twice to determine which objections Petitioners would like him to make. See Exhibit D to petition for writ of habeas corpus, at page 28. Because he failed to present the factual issues in his affidavit to the state court, Petitioner cannot now present them to the federal court unless he makes a proper showing that he is entitled to do so.
The Supreme Court recently clarified the standards of law governing the circumstances in which a federal habeas petitioner may be granted a hearing to develop new facts. Williams v. Taylor, 529 U.S. ___, 120 S.Ct. 1479, 2000 WL 38534 (2000). In Williams, the Supreme Court determined that petitioners who can show an exercise of diligence in discovering and presenting the factual basis of their claims in state court need not satisfy 28 U.S.C. § 2254(e)(2), but may instead satisfy the "cause and prejudice" or "miscarriage of justice" standard to obtain an evidentiary hearing in federal court, 120 S.Ct. at 1494.
In this context, "diligence" is measured by the extent to which "the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." 120 S.Ct. at 1490. For example, in Williams, the Court found that petitioner's counsel's failure to investigate references to a co-defendant's psychiatric report in the transcript of a sentencing hearing constituted a lack of diligence in discovering the report. 120 S.Ct. at 1492. Contrarily, on Williams' second claim, the Court found that petitioner had shown diligence where the trial record contained no evidence which would have put a reasonable attorney on notice of a juror's misrepresentation about her relationship with a material witness, and where the petitioner had requested but was denied indigent funding to hire an investigator to investigate jury improprieties in state court. 120 S.Ct. at 1493.
However, if a petitioner fails to show diligence in presenting the facts supporting a claim to the state courts, he must meet the requirements of 28 U.S.C. § 2254(e)(2) in order to obtain an evidentiary hearing to present new facts to the federal court. 120 S.Ct. at 1491. Particularly, a petitioner must show that
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (emphasis added). A petitioner who has not shown diligence in state court proceedings must satisfy the provisions of 28 U.S.C. § 2254(e)(2), and may not make a common law "cause and prejudice" or "miscarriage of justice" argument to excuse his default. Williams, 120 S.Ct. at 1489.
In this case, Petitioner contests the inclusion of information in the pre-sentence report which is personal to him (information about his prior marriages and his prior criminal record). Therefore, he would have a difficult time arguing that he could not have contested the information in the state court. Accordingly, it does not seem that Petitioner could satisfy either standard to bring this "new" evidence into federal court at this point.
Second, even if the Court could consider the new facts, they do not show that Petitioner was actually prejudiced by their inclusion in the presentence report, or that the Court would not have sentenced Petitioner as it did. Petitioner claims prejudice by a statement in the report that he was married to Darla Miller from October 6, 1986 to July 8, 1987, and that, "prior" to being married to Darla, he was married to Carol Miller from August 1987 to March 1988. See presentence report, Exhibit X to Petitioner's Petition for Writ of Habeas Corpus. The presentence report contains an obvious mistake in that August 1987 did not occur "prior" to October 1986. Therefore, upon reading the presentence report, one would conclude either that he was married to Darla prior to being married to Carol or that he was married to Carol prior to being married to Darla. However, Petitioner fails to show how this bit of mis-information is in any way relevant to his sentencing. Further, it is obvious that Petitioner could have cleared up this error in state court because it is a matter within his personal knowledge.
Petitioner further asserts in his affidavit that the pre-sentence report is inaccurate because it includes a statement from his parole officer that Petitioner "violated his parole by committing the offenses of vehicle burglary and trespass." Above the parole officer's statements, the presentence report shows that Petitioner was acquitted of vehicle burglary charged on 7-27-90, and it does not show a trespass conviction.
While there is an inconsistency in the report, Petitioner has made no showing that the court considered the parole officer's comment, or that the comment changed the outcome of his sentencing. Rather, it is clear from the record that, prior to this incarceration, Petitioner had already spent much of his adult life in prison for various other convictions. In the notice of dismissal, the court provided a laundry list of the prior crimes which the court considered in sentencing. The "vehicle burglary and trespass" charges were not among the prior crimes the court considered. Petitioner has not shown prejudice as a result of the internal inconsistency in the presentence report.
The court stated in its notice of dismissal: "the Presentence Report and its attachments yet evidenced the following criminal record for the Applicant; (1) 6/24/80 Pocatello, 2 Cts. Burglary, 5 yrs. Ind., 120 days ret. juris., entered prison 7/16/80, (2) 7/16/80 Boise, Burglary, 1st Degree, 5 yrs. Ind., 120 days ret. juris., (3) 11/5/81 Twin Falls, Burglary, 3 yrs. Ind., entered prison 3/3/82, (4) 3/15/83 Ada Co., Grand theft, 5 yrs. Ind., entered prison 6/23/83, (5) 5/26/88 Ogden, Utah, Poss. Cont. Sub., 0-5 yrs./entered prison 7/28/88, and (6) 7/27/90 Ogden, Utah, Theft by Rec., 6 mons. That list of crimes does not include an escape from jail conviction from Weber County, Utah for Burglary of the third degree, which judgments evidence that the Applicant was sentenced (on February 11, 1991) to a sentence not to exceed five years in the Utah State Prison." The court does not state that it considered "criminal conspiracy charges," another alleged erroneous statement in the presentence report of which Petitioner complains.
Finally, Petitioner has not shown that he is actually innocent of the conviction or sentence. Petitioner admitted in open court that the sentence was not illegal. See Exhibit G to Petition, at page 2; Exhibit D, transcript, at page 54. The maximwn total sentence Petitioner could have received is thirty years' imprisonment. The court sentenced Petitioner to only twenty years, with eleven years fixed and the last nine years indeterminate. For all of the foregoing reasons, the Court is precluded from entertaining Petitioner's first claim.
2. Claim Two: "The Trial Court Did Not Provide Petitioner Notice of the Factual Conclusions It Would Use in Sentencing"
It appears that Petitioner presented his second issue to the Idaho Supreme Court in his petition for discretionary review, but he did not present it on direct appeal to the Idaho Court of Appeals, which is procedurally improper, as explained herein above. It also appears that Petitioner presented this issue in his post-conviction relief petition, but thereafter defaulted on the petition and lost his right to appeal the decision. Like his first issue, this issue is procedurally defaulted.
Petitioner has not adequately asserted a cause and prejudice or miscarriage of justice argument. He did not present an ineffective assistance of counsel argument on this issue to the Idaho Supreme Court, and therefore, it cannot amount to cause. Further, ineffective assistance of counsel in post-conviction relief proceedings is not cause. He offers no other arguments to support the existence of a legitimate cause.
Neither has Petitioner proven prejudice. For example, he has not provided any facts to show that he was not given adequate notice of the "factual conclusions" the trial court would use in sentencing. On the contrary, Petitioner admitted in open court that he had an opportunity to review the presentence report prior to the sentencing hearing. See Exhibit D to Petition for Writ of Habeas Corpus, at page 26. As set forth herein above, Petitioner has also failed to show that he is actually innocent of the conviction or sentence.
3. Claim Three: "Petitioner Was Not Given the Right to Challenge the Reliability of the Hearsay Information in the Presentence Report"
Petitioner's third claim is that he was not given the right to challenge the reliability of the hearsay information in the presentence report. He offers no factual basis for this conclusory allegation. He improperly raised this issue before the Idaho Supreme Court in the same manner as his first and second issue, and it is therefore procedurally defaulted.
Further, as with his first and second claims, Petitioner fails to show cause and prejudice to excuse his default. He has not disclosed any evidence he would have presented to challenge the reliability of the hearsay information in the report. He does not show how his sentencing would have been different had he challenged the information. Petitioner also has not shown that he is actually innocent of the sentence he received. Therefore, this Court cannot consider his claim.
4. Claim Four: "Petitioner Was Deprived of the Right to Rebut the Adverse Matters in the Presentence Report and Deprived of the Right to Present Favorable Evidence in his Behalf"
This claim is essentially a restatement or subpart of Petitioner's second and third claim. For the same reasons, it is in procedural default, and Petitioner has not shown adequate reason for the Court to consider it.
5. Claim Five: "The Trial Court Improperly Used Prior Crimes to Support Petitioner's Guilt or Enhance his Punishment for the Burglary Offenses"
This claim is a restatement or subpart of Petitioner's first claim. For the same reasons, it is in procedural default, and Petitioner has not shown adequate reason for the Court to consider it.
6. Claim Six: "The Trial Court Improperly Considered Prior Crimes Which the State Agreed Not to Use"
This claim is a restatement or subpart of Petitioner's first claim. For the same reasons, it is in procedural default, and Petitioner has not shown adequate excuse to allow the Court to consider it.
7. Claim Seven: "The Trial Court Did Not Explain the Sentence Specifically Enough to Permit Meaningful Appellate Review of the Sentence"
This claim is a duplication of his second, third and fourth claims. For the same reasons, it is in procedural default, and Petitioner has not shown adequate reason for the Court to consider it. Further, as the state court pointed out, there is no evidence in the record to show that the appellate court did not perform a meaningful review of the sentence.
8. Claim Eight: "The Trial Court Abused its Discretion and Sentencing Power"
After his guilty plea, Petitioner filed a Rule 35 motion for a reduction or correction of sentence with the Bannock County District Court, which was denied on September 30, 1997. He directly appealed his sentence and denial of the Rule 35 motion. The Idaho Court of Appeals affirmed the district court's rulings on both sentencing and denial of the Rule 35 motion in an unpublished opinion on April 24, 1997. In Petitioner's appellate brief, he attacked the sentence on state grounds only, arguing that the sentencing court abused its discretion under the Idaho statutoly sentencing scheme. He did not assert that his sentence was contrary to federal constitutional provisions or United States Supreme Court precedent. Petitioner sought review of the intermediate appellate court decision, newly asserting his constitutional issues in the Idaho Supreme Court. The Idaho Supreme Court denied his petition for review without comment on June 19, 1997. Presenting issues and arguments for the first time on a petition for review to the Idaho Supreme Court is procedurally improper in Idaho.
Petitioner next attempted to bring these same issues in a post-conviction relief petition. The Court found that the issues related to discretion and the Rule 35 motion, and that they could not be properly addressed in collateral proceedings because they had already been addressed on direct appeal. See Exhibit G to Petition. In his belated answer to the court's notice of dismissal of his post-conviction petition, Petitioner admitted that the claims raised on appeal were appropriately dismissed. See Exhibit H to Petition for Writ of Habeas Corpus. In addition, the Court found that Petitioner's new constitutional arguments could have been brought on direct appeal, and were not, and were therefore not a valid basis for post-conviction relief. Id. Further, the district court found that Petitioner did not support his constitutional claim or other claims with any factual basis, but that his claims were bald and unsupported allegations. The court noted that although Petitioner's supporting brief was helpful to understand what Petitioner was alleging, he provided no affidavit or further evidence to support these claims. See Exhibit 0, at page 10-11. Finally, Petitioner did not timely respond to the Court's notice of dismissal, and therefore, he procedurally defaulted his post-conviction action and waived his right to appeal.
Petitioner has failed to show cause and prejudice for this claim. Petitioner has shown that his counsel failed to raise these issues on direct appeal. However, the mere failure to raise certain issues on appeal does not automatically constitute ineffective assistance of counsel. "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. 75 1-54, 103 S.Ct. 3308, 33 12-14, 77 L.Ed.2d 987 (1983). "[Nlothing 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., 463 U.S. at 754, 103 S.Ct. at 3314. Jones v. Barnes does not foreclose petitioners from arguing that an omitted claim on appeal constitutes ineffective assistance of counsel; however, as in any ineffective assistance claim, they must show prejudice resulting from an omission in order for the omission to meet the Strickland v. Washington standard. Smith v. Robbins, ___ U.S. ___, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
Here, Petitioner has failed to show any prejudice from the omission of the constitutional claims in his direct appeal, or, in other words, he has not shown that the claims are meritorious. For example, in his brief supporting his post-conviction relief petition, Petitioner claimed that two of the prior felony convictions should not have been considered because he was not afforded assistance of counsel at the proceedings, and thus, they amounted to unconstitutional invalid felony convictions. Petitioner provided no evidence that the prior felony convictions were invalid for the reason asserted.
In short, Petitioner has provided no evidence that the outcome of his appeal would have been different had counsel raised the additional claims on direct appeal. Finally, Petitioner has failed to show actual innocence as to his conviction or sentencing. As a result of the foregoing, the Court cannot consider his claim.
9. Claim Nine: "Ineffective Assistance of Counsel"
Petitioner asserts ineffective assistance of counsel for the following reasons: (1) counsel confirmed with the court prior to sentencing that pending or unknown charges would not be used to detennine the sentence, but then counsel allowed the court to use the information to determine Petitioner's sentence; (2) counsel did not ask the court to explain the sentence specifically enough to provide meaningful appellate review as to use of the presentence investigative report, including those portions of the report Petitioner challenged; (3) counsel failed to object or raise issues regarding charges, conviction or sentences that were false or inaccurate; (4) counsel failed to raise the issue that Petitioner did not receive notice of the prior items to be used; (5) counsel's actions deprived Petitioner of the right to trial and the right to explain or rebut the false or incorrect information; and (6) on direct appeal, counsel abandoned several nonfrivolous issues that Petitioner wanted him to raise on appeal.
Petitioner attempted to present these issues to the Idaho Supreme Court in his petition for discretionary review without having first presented them to the state lower courts. This is procedurally improper. He also presented these issues to the state district court in his petition for post-conviction relief. However, Petitioner failed to timely answer the notice of dismissal, and therefore defaulted this claim. As a result of his default, he was prohibited from filing an appeal on the issues in his post-conviction relief petition.
As explained herein above, Petitioner has not shown that any prejudice occurred to his case as a result of the alleged attorney errors and omissions. His claims are bare, conclusory allegations which are unsupported by any factual evidence. Petitioner has also failed to show that he is actually innocent of the conviction or sentence. Therefore, there is no basis upon which the federal court can hear his claims.
F. Conclusion
In conclusion, all of Petitioner's claims are procedurally defaulted. Petitioner has made no showing, either here or in the state courts below, that his claims have merit. The "cause and prejudice" and "miscarriage of justice" exceptions are available in federal court to achieve justice for those petitioners who have meritorious claims but who were unable to present them in state court through no fault of their own, and for those petitioners who are actually innocent of the conviction or sentence imposed upon them. Petitioner has offered no supporting facts to show that he is entitled to prevail on any claim, or that he is actually innocent. Accordingly, his inability to have his claims heard in federal court does not work an injustice.
The Court concludes that it is precluded from hearing Petitioner's claims as a result of procedural default. Therefore, Respondent is entitled to summary judgment, and Petitioner's petition shall be dismissed.
III. MOTION FOR RECONSIDERATION REGARDING DISMISSAL OF "VIOLATION OF OATH OF OFFICE" CLAIM
Petitioner requests that the Court reconsider its summary dismissal of his claim that the trial judge, Randy Smith, violated his state judicial oath of office. Petitioner has set forth no case law which shows that a violation of a state court's judicial oath of office is an independent basis for federal habeas corpus relief. Further, the Court again finds no such authority in its research. In addition, as Respondent points out, the claim relies on facts which support his other cognizable claims, rendering the claim merely repetitious. Finally, even if Petitioner's claim asserted a cognizable cause of action for habeas corpus relief, it is procedurally defaulted. Petitioner brought this claim in his post-conviction relief petition, but the state district court found that it was unsupported by any facts. Further, Petitioner failed to timely answer the court's notice of dismissal, causing the entire petition to be procedurally defaulted and preventing him from appealing the claim. For all of these reasons, his motion for reconsideration is denied.
IV. MOTION TO PROCEED WITH DISCOVERY
Unless a petitioner files a federal habeas corpus petition containing exhausted claims, he cannot avail himself of discovery. Calderon v. United States Dist. Ct. ("Hill"), 120 F.3d 927, 928 (9th Cir. 1997); Calderon v. United States Dist. Ct. ("Nicolaus"), 98 F.3d 1102, 1106-07 (9th Cir. 1996). Further, only in cases where a petitioner has made "specific allegations" showing "reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief" should the court grant leave to conduct discovery. Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 1799, 138 L.Ed.2d 97 (1997) (citing Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1091, 22 L.Ed.2d 281 (1969)).
In this matter, it is clear that Petitioner has procedurally defaulted his claims, and has not shown any basis upon which the Court can consider them. As a result, it does not appear that Petitioner could, with the records requested, demonstrate that he is entitled to relief. As a result, Petitioner is not entitled to conduct discovery.
Further, Petitioner has made no showing of good cause for the extensive discovery he has requested. See Rule 6, Rules Governing Section 2254 Cases. The Ninth Circuit has explained:
Habeas is an important safeguard whose goal is to correct real and obvious wrongs. It was never meant to be a fishing expedition for habeas petitioners to "explore their ease in search of its existence." Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996) (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). An evidentiary hearing on a claim is required where it is clear from the petition that: (1) the allegations, if established, would entitle the petitioner to relief; and (2) the state court trier of fact has not reliably found the relevant facts. See Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).
A habeas petitioner does not enjoy the presumptive entitlement to discovery of a traditional civil litigant. Bracy v. Gramley, 520 U.S. 899, 903-05, 117 S.Ct. 1793, 1796-97, 138 L.Ed.2d 97 (1997). Rather, discovery is available only in the discretion of the court and for good cause shown. See Rules Governing Section 2254 Cases, Rule 6(a) 28 U.S.C. foll. § 2254. This is consistent with our case law that there is no general right to discovery in habeas proceedings. See Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993).Rich v. Calderon, 187 F.3d 1064, 1067-68 (9tii Cir. 1999). Having failed to show that he has a valid habeas corpus petition upon which relief could be granted and having failed to show good cause for his requests, Petitioner's motion to proceed with discovery is denied.
V. MOTION FOR DOCUMENTS WITHOUT COST
Petitioner has requested that the Clerk of Court provide him with a copy of the local rules and a copy of the docket in his case. The Clerk of Court shall provide a copy of the docket to Petitioner. However, a copy of the local rules is available for Petitioner's use at the prison, and because this case is concluded, a personal copy of the local rules will be of limited use to Petitioner. Accordingly, Petitioner's motion for a copy of the docket is granted, and his motion for a copy of the Local Rules is moot.
VI. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Respondent's motion for summary dismissal (Docket No. 21) is GRANTED. Petitioner's petition is dismissed with prejudice.
IT IS FURTHER HEREBY ORDERED that Petitioner's motion in opposition to motion for summary dismissal (Docket No. 28) is DENIED.
IT IS FURTHER HEREBY ORDERED that Petitioner's motion for reconsideration regarding the Court's dismissal of his "violation of oath of office" claim or motion to alter or amend order (Docket No. 33) is DENIED.
IT IS FURTHER HEREBY ORDERED that Petitioner's motion for contempt (Docket No. 38) is DENIED.
IT IS FURThER HEREBY ORDERED that Petitioner's second motion for leave to proceed with production of documents (Docket No. 42) is DENIED.
IT IS FURTHER HEREBY ORDERED that Petitioner's motion for a copy of the docket (Docket No. 45) is GRANTED, and his motion for a copy of the local rules (Docket No. 45) is MOOT. The Clerk of Court shall provide Petitioner with a current copy of the docket with a copy of this Order.
JUDGMENT
On June 26, 2000, the Court entered an Order dismissing this action with prejudice. Based upon that Order, and being fully advised in the premises, IT IS HEREBY ORDERED AND ADJUDGED that Petitioner's cause of action is DISMISSED in its entirety with prejudice.