UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
MAJID KOLESTANI aka NASTARAN KOLESTANI, Case No. 3:19-cv-00129-REB Petitioner, INITIAL REVIEW ORDER vs.
WARDEN TEREMA CARLIN,
Respondent.
Petitioner Majid Kolestani, also known as Nastaran Kolestani, filed a Petition for Writ of Habeas Corpus challenging her state court conviction and an Application to Proceed in Forma Pauperis. (Dkt. 1.) All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 7.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. The Court now reviews the Petition to determine whether the claims are 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). 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 “it 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.
2. Background Petitioner Majid Kolestani, a transgender Iranian refugee also known as Nastaran Kolestani, is being held in the custody of the Idaho Department of Correction (IDCO). In 2009, Petitioner was charged with first degree murder and a weapon enhancement in a Twin Falls County, Idaho criminal action, arising from the shooting death of her husband.
Petitioner pleaded guilty to first degree murder in exchange for dismissal of the weapon enhancement. Petitioner also agreed to forgo the right to file a direct appeal and a Rule 35 motion for leniency in sentencing. Petitioner was sentenced to 18 fixed years of imprisonment with life indeterminate. See Kolestani v. Idaho, 2018 WL 6715873 (Idaho Ct. App. 2018). Petitioner filed a post-conviction action, bringing claims of an involuntary plea and ineffective assistance of counsel. Her action was summarily dismissed, and the Idaho Court of Appeals affirmed dismissal. The Idaho Supreme Court denied the petition for
review. See id. Petitioner then filed this federal habeas corpus action. 3. Review of Claims Petitioner brings the following claims. First, she asserts that her plea agreement
was not knowing, voluntary, or intelligent, and that her counsel was ineffective in directing her to sign it—alleged violations of the Fifth, Sixth, and Fourteenth Amendments. Second, she asserts that she did not knowingly and intelligently waive her Fifth Amendment right to decline police interrogation during their investigation, because she was under the influence of pain medication and had a language barrier. Third, she
alleges that she was denied her Sixth Amendment right to effective assistance of counsel on several grounds surrounding her guilty plea. Fourth, Petitioner asserts that her defense counsel had a conflict of interest, also based on grounds related to her guilty plea. Petitioner may proceed on her claims to the extent that they are federally cognizable and are in a procedurally proper posture (or if not, legal or equitable excuses apply to excuse the default of any of the claims). Therefore, the Court will order the
Clerk to serve a copy of the Petition on counsel for Respondent, who may respond either by answer or pre-answer motion and who shall provide relevant portions of the state court record to this Court. 4. Request for Appointment of Counsel Petitioner seeks appointment of counsel, citing her language barrier and lack of legal training. There is no constitutional right to counsel in a habeas corpus action.
Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or if an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C.
§ 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner’s ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Presently, the Court will deny Petitioner’s request for appointment of counsel until
after it has an opportunity to review the state court record submitted by Respondent to consider whether the claims appear meritorious or whether discovery or an evidentiary hearing is required. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). If Petitioner needs an interpreter, she must seek that through the prison access to courts program. The Court will reconsider Petitioner’s request for appointment
of counsel at each phase of this litigation, without the need for Petitioner to file another motion. 5. Standards of Law for Habeas Corpus Action Given Petitioner’s status as a pro se litigant, the Court provides the following habeas corpus standards of law which may apply to Petitioner’s case, depending on
Respondent’s response. A. Exhaustion of State Court Remedies
Habeas corpus law requires that a petitioner “exhaust” his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it as a federal claim to the highest state court for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative
to a particular claim, a federal district court cannot grant relief on that claim, although it does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2). State remedies are considered technically exhausted, but not properly exhausted, if a petitioner failed to pursue a federal claim in state court and there are no remedies now available. O’Sullivan, 526 U.S. at 848.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
MAJID KOLESTANI aka NASTARAN KOLESTANI, Case No. 3:19-cv-00129-REB Petitioner, INITIAL REVIEW ORDER vs.
WARDEN TEREMA CARLIN,
Respondent.
Petitioner Majid Kolestani, also known as Nastaran Kolestani, filed a Petition for Writ of Habeas Corpus challenging her state court conviction and an Application to Proceed in Forma Pauperis. (Dkt. 1.) All named parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 7.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. The Court now reviews the Petition to determine whether the claims are 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). 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 “it 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.
2. Background Petitioner Majid Kolestani, a transgender Iranian refugee also known as Nastaran Kolestani, is being held in the custody of the Idaho Department of Correction (IDCO). In 2009, Petitioner was charged with first degree murder and a weapon enhancement in a Twin Falls County, Idaho criminal action, arising from the shooting death of her husband.
Petitioner pleaded guilty to first degree murder in exchange for dismissal of the weapon enhancement. Petitioner also agreed to forgo the right to file a direct appeal and a Rule 35 motion for leniency in sentencing. Petitioner was sentenced to 18 fixed years of imprisonment with life indeterminate. See Kolestani v. Idaho, 2018 WL 6715873 (Idaho Ct. App. 2018). Petitioner filed a post-conviction action, bringing claims of an involuntary plea and ineffective assistance of counsel. Her action was summarily dismissed, and the Idaho Court of Appeals affirmed dismissal. The Idaho Supreme Court denied the petition for
review. See id. Petitioner then filed this federal habeas corpus action. 3. Review of Claims Petitioner brings the following claims. First, she asserts that her plea agreement
was not knowing, voluntary, or intelligent, and that her counsel was ineffective in directing her to sign it—alleged violations of the Fifth, Sixth, and Fourteenth Amendments. Second, she asserts that she did not knowingly and intelligently waive her Fifth Amendment right to decline police interrogation during their investigation, because she was under the influence of pain medication and had a language barrier. Third, she
alleges that she was denied her Sixth Amendment right to effective assistance of counsel on several grounds surrounding her guilty plea. Fourth, Petitioner asserts that her defense counsel had a conflict of interest, also based on grounds related to her guilty plea. Petitioner may proceed on her claims to the extent that they are federally cognizable and are in a procedurally proper posture (or if not, legal or equitable excuses apply to excuse the default of any of the claims). Therefore, the Court will order the
Clerk to serve a copy of the Petition on counsel for Respondent, who may respond either by answer or pre-answer motion and who shall provide relevant portions of the state court record to this Court. 4. Request for Appointment of Counsel Petitioner seeks appointment of counsel, citing her language barrier and lack of legal training. There is no constitutional right to counsel in a habeas corpus action.
Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or if an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C.
§ 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner’s ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Presently, the Court will deny Petitioner’s request for appointment of counsel until
after it has an opportunity to review the state court record submitted by Respondent to consider whether the claims appear meritorious or whether discovery or an evidentiary hearing is required. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). If Petitioner needs an interpreter, she must seek that through the prison access to courts program. The Court will reconsider Petitioner’s request for appointment
of counsel at each phase of this litigation, without the need for Petitioner to file another motion. 5. Standards of Law for Habeas Corpus Action Given Petitioner’s status as a pro se litigant, the Court provides the following habeas corpus standards of law which may apply to Petitioner’s case, depending on
Respondent’s response. A. Exhaustion of State Court Remedies
Habeas corpus law requires that a petitioner “exhaust” his state court remedies before pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a habeas petitioner must fairly present it as a federal claim to the highest state court for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Unless a petitioner has exhausted his state court remedies relative
to a particular claim, a federal district court cannot grant relief on that claim, although it does have the discretion to deny the claim. 28 U.S.C. § 2254(b)(2). State remedies are considered technically exhausted, but not properly exhausted, if a petitioner failed to pursue a federal claim in state court and there are no remedies now available. O’Sullivan, 526 U.S. at 848. A claim may also be considered exhausted,
though not properly exhausted, if a petitioner pursued a federal claim in state court, but the state court rejected the claim on an independent and adequate state law procedural ground. Coleman v. Thompson, 501 U.S. 722, 731-732 (1991). Under these circumstances, the claim is considered “procedurally defaulted.” Id. at 731. A procedurally defaulted claim will not be heard in federal court unless the petitioner shows
either that there was legitimate cause for the default and that prejudice resulted from the default, or, alternatively, that the petitioner is actually innocent and a miscarriage of justice would occur if the federal claim is not heard. Id. To show “cause” for a procedural default, a petitioner must ordinarily demonstrate
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 (1986). To show “prejudice,” a petitioner bears “the burden of showing not merely that the errors [in his proceeding] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of
constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). An attorney’s errors that rise to the level of a violation of the Sixth Amendment’s right to effective assistance of counsel may, under certain circumstances, serve as a cause to excuse the procedural default of other claims. Murray v. Carrier, 477 U.S. at 488. However, an allegation of ineffective assistance of counsel will serve as cause to excuse
the default of other claims only if the ineffective assistance of counsel claim itself is not procedurally defaulted or, if defaulted, Petitioner can show cause and prejudice for the default. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). In other words, before a federal court can consider ineffective assistance of counsel as cause to excuse the default of underlying habeas claims, a petitioner generally must have presented the ineffective
assistance of counsel claim in a procedurally proper manner to the state courts, such as in a post-conviction relief petition, including through the level of the Idaho Supreme Court. As to another related but different topic—errors of counsel made on post- conviction review that cause the default of other claims—the general rule on procedural default is that any errors of a defense attorney during a post-conviction action cannot serve as a basis for cause to excuse a petitioner’s procedural default of his claims. See Coleman v. Thompson, 501 U.S. at 752. This rule arises from the principle that a
petitioner does not have a federal constitutional right to effective assistance of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). The case of Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception to the Coleman rule. In Martinez, the court held that inadequate assistance of counsel “at
initial-review collateral review proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Martinez Court explained that the limited exception was created “as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a
substantial claim.” Id. at 14. The Martinez v. Ryan exception is applicable to permit the district court to hear procedurally defaulted claims of ineffective assistance of trial counsel, id. at 1320, and ineffective assistance of direct appeal counsel. See Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013). The exception has not been extended to other types of claims. See Hunton v.
Sinclair, 732 F.3d 1124 (9th Cir. 2013) (Martinez not applicable to a defaulted Brady claim). If a petitioner cannot show cause and prejudice for a procedurally defaulted claim, he can still raise the claim if he demonstrates that the court’s failure to consider it will result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494 (1991). A miscarriage of justice means that a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477
U.S. at 496. A compelling showing of actual innocence can satisfy the fundamental miscarriage of justice exception to procedural default, allowing a court to review Petitioner’s otherwise defaulted claims on their merits. See Schlup v. Delo, 513 U.S. 298, 315, 324 (1995). “Actual innocence” means a colorable showing that one is factually, not
merely legally, innocent of the charges. Herrera v. Collins, 506 U.S. 390, 404 (1993). To establish such a claim, a petitioner must come forward 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. The evidence supporting the actual innocence claim must be “newly presented”
evidence of actual innocence, meaning that “it was not introduced to the jury at trial”; it need not be “newly discovered,” meaning that it could have been available to the defendant during his trial, though it was not presented to the jury. Griffin v. Johnson, 350 F.3d 956, 962–63 (9th Cir. 2013). The petitioner bears the burden of demonstrating that “in light of all the evidence,
including evidence not introduced at trial, it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Id. at 327; see also House v. Bell, 547 U.S. 518, 539 (2006). The standard is demanding and permits review only in the “extraordinary” case. Schlup, 513 U.S. at 327 (citation omitted). A habeas proceeding is not a proper forum in which to re-litigate an entire case that has already been tried. Instead, “[w]hen confronted with a challenge based on trial evidence, courts presume the jury resolved evidentiary disputes reasonably so long as
sufficient evidence supports the verdict.” House v. Bell, 547 U.S. at 539. A persuasive claim of actual innocence must be based on new evidence that was not presented to the jury that is so compelling that the reviewing court must conclude that it is now probable that no rational juror would vote to convict the defendant. See id. at 538-39. As to timing, “[u]nexplained delay in presenting new evidence bears on the
determination whether the petitioner has made the requisite showing.” Perkins, 133 S.Ct. at 1935. In other words, a petitioner’s diligence should not be considered “discretely, but as part of the assessment whether actual innocence has been convincingly shown.” Id.
B. Claims Proceeding on Merits For any of Petitioner’s claims that meet these procedural requirements and proceed on the merits, Petitioner shall bear the burden of proving that the state court
judgment either “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or that it “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Though the source of clearly established federal law must come from the holdings of the United States Supreme Court, circuit law may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). However, “circuit precedent may [not] be used to refine or sharpen a general principle of Supreme
Court jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citations omitted). ORDER IT IS ORDERED: 1. Petitioner’s Application to Proceed in Forma Pauperis (Dkt. 1) is GRANTED.
2. Petitioner’s request for appointment of counsel, contained in the Petition (Dkt. 3) is DENIED without prejudice. 3. The Clerk of Court shall serve (via ECF) a copy of the Petition (Dkt. 3), with exhibits, together with a copy of this Order, on L.LaMont Anderson, on behalf of Respondent, at Mr. Anderson’s registered ECF address.
4. Within 120 days after entry of this Order, Respondent shall have the option of filing either of the following: (1) a motion for summary dismissal or partial summary dismissal on procedural grounds (which may be followed by an answer if the motion is unsuccessful); or (2) an answer and brief on the claims that were adjudicated on the merits by the Idaho Supreme Court, that also
includes a brief summary (between one paragraph and several pages) of any procedural defenses for any claims (which may be argued in the alternative). If Respondent files an answer and brief, the Court first will determine the claims that were adjudicated on the merits by the Idaho Supreme Court; for any claims that appear to warrant relief or for any claims not disposed of on the merits that appear subject to procedural defenses, the Court next will determine whether those claims are barred by any procedural defenses and will call for
additional briefing, evidence, or a hearing, if necessary. 5. Respondent shall file with the responsive pleading or motion, or within a reasonable time period thereafter, a copy of all portions of the state court record previously transcribed that are relevant to a determination of the issues presented. Any presentence investigation reports or evaluations shall be filed
under seal. The lodging of the remainder of the state court record, to the extent that it is lodged in paper format, is exempt from the redaction requirements, as provided in District of Idaho Local Civil Rule 5.5(c). 6. If the response to the habeas petition is an answer, Petitioner shall file a reply (formerly called a traverse), containing a brief rebutting Respondent’s answer
and brief, which shall be filed and served within 30 days after service of the answer. Respondent has the option of filing a sur-reply within 14 days after service of the reply. At that point, the case shall be deemed ready for a final decision. 7. If the response to the habeas petition is a motion, Petitioner’s response shall be
filed and served within 30 days after service of the motion, and Respondent’s reply, if any, shall be filed and served within 14 days thereafter. 8. No party shall file supplemental responses, replies, affidavits or other documents not expressly authorized by the Local Rules without first obtaining leave of Court.
9. No discovery shall be undertaken in this matter unless a party obtains prior leave of Court, pursuant to Rule 6 of the Rules Governing Section 2254 Cases. 10. The parties may, but need not, file the following in this matter: (1) notices of non-objections to motions to which they do not object; (2) responses to motions for appointment of counsel; (3) responses to motions that are
meritless, frivolous, or filed in contravention of this Order; or (4) notices of intent not to file a reply. If additional briefing is required on any issue, the Court will order it. 11. Each party shall ensure that all documents filed with the Court are simultaneously served via the ECF system or by first-class mail upon the
opposing party (through counsel if the party has counsel), pursuant to Federal Rule of Civil Procedure 5. Each party shall sign and attach a proper mailing certificate to each document filed with the court, showing the manner of service, date of service, address of service, and name of the person upon whom service was made, or as specified by the applicable ECF rules. The Court will
not consider ex parte requests unless a motion may be heard ex parte according to the rules and the motion is clearly identified as requesting an ex parte order, pursuant to Local Rule 7.2. (“Ex parte” means that a party has provided a document to the court, but that the party did not provide a copy of the document to the other party to the litigation.) 12. All Court filings requesting relief or requesting that the Court make a ruling or take an action of any kind must be in the form of a pleading or motion, with an appropriate caption designating the name of the pleading or motion, served on all parties to the litigation, pursuant to Federal Rules of Civil Procedure 7, 10 and 11, and Local Rules 5.2 and 7.1. The Court will not consider requests made in the form of letters. 13. Petitioner shall at all times keep the Court and Respondent advised of any changes in address. 14. If Petitioner’s custodian changes at any point during this litigation, counsel for Respondent shall file a Notice of Substitution of Respondent within 30 days of such change, identifying the person who is substituted as Respondent. See Fed. R. Civ. P. 25(d); Rule 2(a) of the Rules Governing Section 2254 Cases.
aa DATED: September 30, 2019 MS) [ 6 be Honorable Ronald E. Bush Chief U. S. Magistrate Judge
INITIAL REVIEW ORDER - 13