Severson v. Tewalt

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 1, 2025
• Docket: 23-3247
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 1 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LARRY SEVERSON, Nos. 23-3187 & 23-3247 D.C. No. Petitioner-Appellant & Cross-Appellee, 1:20-CV-00429-REP v.

RUSSELL ROSS, Warden of the Idaho State MEMORANDUM* Correctional Center, et al.,

Respondents-Appellees & Cross-Appellants,

UNITED STATES OF AMERICA,

Intervenor.

Appeal from the United States District Court for the District of Idaho Raymond E. Patricco, Magistrate Judge, Presiding

Argued and Submitted November 4, 2025 Portland, Oregon

Before: M. SMITH, NGUYEN, and H.A. THOMAS, Circuit Judges.

Petitioner Larry Severson was convicted of poisoning and murdering his wife,

Mary. Following direct appeal and requests for post-conviction relief, Severson

petitioned the district court for a writ of habeas corpus. The magistrate judge denied

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his petition but issued a certificate of appealability (COA) on Severson’s claim that

his trial attorneys rendered ineffective assistance of counsel by failing to object to

improper closing remarks by the prosecutor. Severson now appeals the magistrate

judge’s order rejecting that claim. He also requests that we expand the COA so he

can challenge the prosecutor’s alleged misconduct on due process grounds.

With jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the magistrate

judge’s denial of habeas relief on both the certified and uncertified issues.

The parties are familiar with the facts, so we do not recount them here except

as necessary to provide context for our ruling.

1. Respondents challenge the magistrate judge’s order rejecting their

theory that Severson’s habeas petition is time-barred. However, the magistrate judge

was correct. Severson filed his petition in August 2020, just four months after the

Idaho Court of Appeals resolved his 2018 application for post-conviction relief. See

State v. Severson, No. 46343, 2020 WL 1899821, at *1 (Idaho Ct. App. Apr. 17,

2020). Because “[t]he time during which a properly filed application for State post-

conviction . . . review . . . is pending shall not be counted toward any period of

limitation,” Severson’s petition was filed well within the applicable “1-year period

of limitation.” 28 U.S.C. § 2244(d).

But according to Respondents, Severson’s 2018 application was not “properly

filed,” as it was procedurally barred by Idaho Code § 19-4908. And so, they argue,

2 23-3187 & 23-3247 the limitations clock began ticking in July 2019, rendering Severson’s August 2020

petition untimely. Respondents are mistaken. A procedural bar to relief, such as a

state law barring claims “previously determined on the merits,” does not render a

post-conviction application improperly filed under § 2244(d). Artuz v. Bennett, 531

U.S. 4, 10–11 (2000) (quoting N.Y. Crim. Proc. Law § 440.10(2)). Idaho’s statute

barring post-conviction relief based on “ground[s] finally adjudicated” in a prior

application falls neatly within this doctrine. Idaho Code § 19-4908. The statute sets

limits on the “claims” an applicant can advance without purporting to impose any

“condition to filing.” Artuz, 531 U.S. at 9, 11. Severson’s petition was thus

“properly filed” within the meaning of § 2244(d).

Although we have twice noted that “improper successive [applications]” do

not toll the limitations period under § 2244(d)(2), we made those comments in

dicta—without assessing their congruity with Artuz or examining the state-law

procedural bars at issue. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010);

Blackman v. Cisneros, 122 F.4th 377, 384 & n.3 (9th Cir. 2024) (quoting Porter,

620 F.3d at 958). Neither case vitiates our duty to apply Artuz to the facts before us.

2. Severson raises a threshold issue of his own. He argues that the

Antiterrorism and Effective Death Penalty Act (AEDPA), which governs claims for

federal habeas relief by state prisoners, “runs afoul of Article III” following the

Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369

3 23-3187 & 23-3247 (2024). Severson forfeited this challenge, however, as he failed to raise the issue in

his opening brief. See Transamerica Life Ins. Co. v. Arutyunyan, 93 F.4th 1136,

1146 (9th Cir. 2024).

3. When denying Severson’s habeas petition, the magistrate judge

certified for appeal the question whether Severson’s trial attorneys provided

ineffective assistance of counsel in violation of the Sixth Amendment. To prevail

on this claim, Severson must show that his “counsel’s performance was deficient,”

and “that the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). The “deficiency” element asks whether the

quality of representation fell “below an objective standard of reasonableness.” Id.

at 688. In making this assessment, we must be “highly deferential” to counsel’s

decisions. Id. at 689. The “prejudice” element asks whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. A reasonable probability is a “substantial,”

not merely “conceivable,” probability. Cullen v. Pinholster, 563 U.S. 170, 189

(2011) (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)).

On habeas review, AEDPA restricts relief to cases where the state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court.” 28 U.S.C.

§ 2254(d)(1). This standard is met only if no “fairminded jurist[] could disagree”

4 23-3187 & 23-3247 that the state court contradicted Supreme Court precedent. Harrington, 562 U.S at

102 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Since Strickland

and AEDPA “are both highly deferential” standards, when both apply, “review is

doubly so.” Id. at 105 (cleaned up). At this juncture, we review “the last reasoned

state court decision.” Balbuena v. Sullivan, 980 F.3d 619, 629 (9th Cir. 2020). But

if the “state court has not reached the merits” of a given issue, we “review it de

novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Severson contends that his counsel rendered deficient performance by failing

to object to certain comments by the prosecutor, including that his expert was “a

very credible individual, with nothing to lose,” and that “[t]here is no innocence in

this courtroom except the innocence of Mary Severson.” We agree with Severson

that these and other remarks were inappropriate and objectionable, and should never

have been uttered. See, e.g., United States v. Sanchez, 176 F.3d 1214, 1224 (9th Cir.

1999) (“As a general rule, a prosecutor may not express” her “belief in the credibility

of government witnesses.”); Ford v. Peery, 999 F.3d 1214, 1224, 1227 (9th Cir.

2021) (concluding that a prosecutor misstated the law when remarking to the jury

“that the presumption of innocence was ‘over’”).

However, that does not necessarily mean that Severson’s attorneys’

performance fell beneath an “objective standard of reasonableness.” Strickland, 466

U.S. at 688. We owe deference both to Severson’s counsel and to the Idaho Court

5 23-3187 & 23-3247 of Appeals, which concluded that Severson’s counsel was not deficient (except,

perhaps, with respect to the vouching comment). See Severson v. State, No. 45780,

2019 WL 1787315, at *6 (Idaho Ct. App. Apr. 24, 2019) (Severson IV).1 Ultimately,

we need not review the Idaho court’s “deficiency” determinations comment-by-

comment because, even presuming that counsel was duty-bound to object to each of

the challenged remarks, Severson’s Strickland claim still fails on the prejudice

prong.2

Severson is correct that no Idaho court analyzed the impact of these statements

on the verdict cumulatively, as none found more than one instance of deficiency to

cumulate. See State v. Severson, 215 P.3d 414, 441–43 (Idaho 2009) (Severson I);

Severson IV, 2019 WL 1787315 at *7. However, this point is of no help to him.

Analyzing the issue de novo, Pirtle, 313 F.3d at 1167, there is no “reasonable

probability” that “the result of the proceeding would have been different” had

1 Making this argument more difficult for Severson is a line of cases explaining that, given the numerous sound reasons an attorney might “refrain from objecting during . . . closing argument, absent egregious misstatements, the failure to object during closing argument” generally falls “within the ‘wide range’ of permissible professional legal conduct.” United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (quoting Strickland, 466 U.S. at 689); see also, e.g., United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (“[A] few missed objections alone, unless on a crucial point, do not rebut the strong presumption” that counsel’s performance was “reasonable.”). 2 We assume without deciding that the “cumulative error” doctrine is “clearly established” for AEDPA purposes, such that the Court must cumulate the Strickland deficiencies and analyze their total impact on the verdict.

6 23-3187 & 23-3247 Severson’s attorneys objected to the challenged remarks. Strickland, 466 U.S. at

694. The 17-day trial record is replete with uncontroverted evidence of Severson’s

guilt. Some of the most incriminating examples include the unexplained testimony

(1) that Mary’s weight-loss pills were laced with drain cleaner and that the packaging

had been tampered with; (2) that residue from trash seized at Severson’s workplace

was consistent with the same drain cleaner; (3) that Severson did not call 911 after

supposedly finding his wife unresponsive, even though he was the only other person

home; (4) that he told others he wished to divorce Mary, but was financially

incapable of doing so because their home, business, and cars were all in her name;

(5) that he planned for her death, including (a) by falsely telling others that Mary

had cancer, but telling them not to mention the cancer to her, and (b) by getting

engaged to another woman and making plans for her to move into his home (which

was in Mary’s name); (6) that he sought out Mary’s life-insurance policy mere hours

after her death, falsely claiming that his mother-in-law had inquired about it; (7) that

he lied to his daughter-in-law and hospital staff about Mary taking sleeping pills,

although he had personally refilled her prescription the day before; and (8) that

authorities found a bag of sleeping pills in his house, concealed in a hat labeled

“Dad.”

In addition, the trial judge repeatedly instructed the jury that the prosecutor’s

arguments were not evidence, and that the jury’s verdict must rest on evidence alone.

7 23-3187 & 23-3247 Courts “generally presume that jurors follow” such instructions. Penry v. Johnson,

532 U.S. 782, 799 (2001).

The combination of these factors renders defense counsel’s passivity during

closing arguments harmless. See Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th

Cir. 1991) (concluding that counsel’s non-objections did not prejudice petitioner

where a “substantial amount of . . . evidence pointed squarely at his guilt, and the

jury was properly advised that counsel’s statements were merely argument, not

evidence”); Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (similar).

4. Beyond his Strickland claim, Severson asks that we expand the COA,

so he can assert a due process claim based on the prosecutor’s misconduct.3 We

grant his request but hold that this claim also fails for lack of prejudice.

To show a due process violation, it “is not enough that the prosecutors’

remarks were undesirable or even universally condemned.” Darden v. Wainwright,

477 U.S. 168, 181 (1986). Instead, the “due process analysis in cases of alleged

prosecutorial misconduct” centers on “the fairness of the trial.” Smith v. Phillips,

455 U.S. 209, 219 (1982). A fair trial is one “resulting in a verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Severson’s burden is to

show “a reasonable probability” that the misconduct “rendered the trial

3 The magistrate judge declined to certify this issue for appeal, finding its “resolution” not “reasonably debatable.”

8 23-3187 & 23-3247 fundamentally unfair.” Ford, 999 F.3d at 1225 (quoting Deck v. Jenkins, 814 F.3d

954, 985 (9th Cir. 2016)).

The bar for such claims is high. In Darden, the Supreme Court rejected a due

process challenge where the prosecutor referred to the defendant as an “animal,”

mentioned the death penalty in a guilt-phase proceeding, and made numerous,

outrageous remarks about the defendant, including that “[h]e shouldn’t be out of his

cell unless he has a leash on”; that “I wish [the victim] had [] a shotgun in his

hand . . . and [had] blown [the defendant’s] face off”; that “I wish that I could see

him sitting here with no face, blown away by a shotgun”; that “I wish he had used

[the gun] on himself”; and that “I wish he had been killed in the accident.” 477 U.S.

at 179–81 & nn.9–12. The Court weighed these “undoubtedly [] improper”

statements against the “heavy” evidence of guilt and the trial court’s admonitions

that the “arguments of counsel were not evidence.” Id. at 180, 182. It also

considered that the prosecutor did not “manipulate or misstate the evidence,” nor did

his remarks “implicate other specific rights” like the right to counsel. Id. at 182.

And it concluded that while the defendant’s “trial was not perfect—few are,”

“neither was it fundamentally unfair.” Id. at 183.

In support of his Darden claim, Severson challenges much of the same

prosecutorial conduct that he invokes in support of his Strickland claim (though not

the expert-vouching comment). He adds that the prosecutor inflamed the jury’s

9 23-3187 & 23-3247 passions by stating that “Mary . . . speaks to us from her grave as to who killed her

and why she died,” and that the prosecutor violated his right to remain silent under

Griffin v. California, 380 U.S. 609 (1965), by stating that “[n]obody knows, that has

testified, what happened between [Mary and Severson].” The Idaho Supreme Court

concluded that none of these comments rose to the level of prosecutorial misconduct,

and that the alleged Griffin violation was too “ambiguous” and “isolated” to deprive

Severson of a fair trial. Severson I, 215 P.3d at 439–40. Concluding that Severson

failed to show at least two improper statements, the Severson I court did not analyze

the statements’ cumulative impact on the verdict. See id. at 443. Assuming without

deciding that all the misconduct alleged is actionable, and thus analyzing the

potential cumulative prejudice issue de novo, Pirtle, 313 F.3d at 1167,4 we see no

“reasonable probability” that the prosecutor’s actions “rendered the trial

fundamentally unfair.” Ford, 999 F.3d at 1225 (quoting Deck, 814 F.3d at 985).

The extensive and outrageous misconduct held insufficient in Darden is

considerably worse than the prosecutor’s comments here. See 477 U.S. at 179–81

& nn.9–12. Given the strength of the evidence against Severson and the trial court’s

jury instructions, the prosecutor’s remarks have not shaken our “confidence” in the

jury’s guilty verdict. Kyles, 514 U.S. at 434; see also Michaels v. Davis, 51 F.4th

4 As with Severson’s Strickland claim, we assume for the sake of argument that the “cumulative error” doctrine is “clearly established” for Darden claims.

10 23-3187 & 23-3247 904, 952–54 (9th Cir. 2022) (rejecting Darden claim where prosecutor accused

defendant of “devil worship,” called him “evil” and a “beast,” “monster,”

“psychopath,” “professional” and “contract killer,” and asked jurors to step into the

victim’s shoes). This conclusion holds firm even acknowledging that the evidence

of guilt in Darden was stronger than it is here, and that the jury in this case

deliberated for two days before returning a verdict. This conclusion likewise holds

firm despite Severson’s allegation that the prosecutor violated his rights under

Griffin—a point of distinction between this case and Darden. See Hovey v. Avers,

458 F.3d 892, 912 (9th Cir. 2006) (holding “isolated” Griffin violation harmless

where “minimal in comparison” with evidence of guilt). Even so, given the

voluminous evidence of Severson’s guilt, we cannot say that the prosecutor’s

handful of inappropriate remarks, buried in 166 pages of closing arguments, “so

infected” the 17-day trial “with unfairness” as to deny Severson due process.

Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)).

* * *

The magistrate judge’s order denying Severson’s petition for a writ of habeas

corpus is therefore AFFIRMED.

11 23-3187 & 23-3247