UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
VANCE EVERETT THUMM, Case No. 1:19-cv-00389-DCN Petitioner, INITIAL REVIEW ORDER v.
JOSH TEWALT, IDOC Director,
Respondent.
Petitioner Vance Everett Thumm, a prisoner currently in custody of the California Department of Corrections and Rehabilitation, has filed a Petition for Writ of Habeas Corpus challenging his Idaho state court conviction. See Dkt. 1. The Court now reviews the Petition to determine whether it is subject to summary dismissal pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”). REVIEW OF PETITION 1. Standard of Law for Review of Petition 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. Habeas Rule 4. 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.”1 Id. 2. Discussion Following a jury trial in the Fourth Judicial District Court in Ada County, Idaho,
Petitioner was convicted of aggravated battery and a persistent violator enhancement. The judgment of conviction was entered on March 10, 2010. Petitioner was sentenced to a unified term of forty years in prison with fifteen years fixed. Petitioner pursued a direct appeal as well as state post-conviction relief. Dkt. 1 at 1–3. In the instant Petition for Writ of Habeas Corpus, Petitioner brings the following
twelve claims, citing the Fifth, Sixth, and Fourteenth Amendments: Claim 1: “The district court committed reversible error by denying motion for mistrial after one of the states [sic] witnesses referenced [Petitioner’s] alleged gang affiliation.” Id. at 6. Claim 2: “The district court committed reversible error in concluding that if the defense called Chris Smith to testify then the state would be permitted to impeach his testimony with information that both [Petitioner] and Mr. Smith are alleged gang members from different gangs.” Id. at 7. Claim 3: “[Petitioner’s] due process rights were violated when the state introduced evidence that he invoked his fifth amendment rights to infer guilt during case in chief and closing argument.” Id. at 8. Claim 4: “[Petitioner] was denied his constitutional right to a fair trial due to the serious and relentless acts of prosecutorial misconduct,” in the following respects: (a) “appeal[ing] to jury’s passions and prejudices”; (b) “misstat[ing] the reasonable doubt standard”; and (c)
1 However, a court undertaking a Rule 4 review is not required to comb through a petitioner’s exhibits or other documents to determine whether a petitioner may proceed, nor is a respondent required to address such documents when responding to the Petition. This is because, under Habeas Rule 2(c)(1), the petition must “specify all the grounds for relief available to petitioner.” That is, a habeas petitioner must include— in the petition itself—“all of the information necessary to adjudicate that Petition.” Sivak v. Christensen, No. 1:16-CV-00189-BLW, 2018 WL 4643043, at *2 n.3 (D. Idaho Sept. 27, 2018) (unpublished). Therefore, the Court has considered only the Petition itself in its Rule 4 review. “elicit[ing] evidence that [Petitioner] invoked his fifth amendment rights to infer his guilt.” Id. at 9. Claim 5: “Under the doctrine of cumulative error, the accumulation of irregularities durring [sic] the trial … warrant[s] a new trial.” Id. at 10. Claim 6: Ineffective assistance of counsel in the following respects: (a) trial counsel’s conduct “regarding joinder of the trial with co-defendants”; (b) trial counsel’s “failure to object to the hearsay statements of [Petitioner’s] co-defendant being introduced in [Petitioner’s] trial”; and (c) appellate counsel’s failure “to raise this issue as fundamental error on direct appeal.” Id. at 11. Claim 7: Ineffective assistance of trial counsel, based on “lack of preparation,” in the following respects: (a) late disclosure of defense witnesses; (b) missing a “deadline to submit redacted audio tapes”; (c) “failing to timely file a motion to suppress the photo line ups”; (d) failing “to adequately meet, communicate, or prepare with [Petitioner] and fail[ing] to provide and/or review the discovery with him”; and (e) failing to prepare “for the testimony of Helen Fisher.” Id. at 12. Claim 8: Ineffective assistance of trial counsel in the following respects: (a) failing “to oppose the proposed impeachment of witnesses by gang membership”; (b) failing to call witnesses; (c) “failing to object to testimony of Jeremy Steinmetz and … failing to impeach him”; (d) failing “to object to the prosecutions [sic] use of the term ‘prison’”; (e) failing use fingerprint evidence that was “fexculpatory[] [and] not incriminating”; (f) failing to object to prosecutorial misconduct; (g) failing to impeach Frankie Hughes on the basis of bias; and (h) failing to impeach, “refresh,” or “follow up” with detectives. Id. at 13. Claim 9: Violation of Brady v. Maryland, 373 U.S. 83 (1963), based on the state’s “failure to timely disclose a fingerprint report. Id. at 14. Claim 10: Prosecutorial misconduct during closing argument in the following respects: (a) taking “advantage … of [the prosecutor’s] own non- disclosure of the fingerprint evidence”; (b) making “disparaging comments about defense counsel and the defense”; (c) making “unsupported comments about the victim … being afraid of [Petitioner]”; (d) arguing “that Jeremy Steinmetz was afraid of [Petitioner]”; (e) “mischaracteriz[ing] significant evidence”; and (f) using inflammatory language. Id. at 15. Claim 11: Claim 11(a) asserts ineffective assistance of sentencing counsel. Claim 11(b) asserts ineffective assistance of direct appeal counsel for “failing to raise the Bruton issue, Abel issue, and Brady issue, and all instances of prosecutorial misconduct.” Id. at 16. Claim 12: Cumulative error. Id. at 17. This claim appears to be a duplicate of Claim 5. Petitioner may proceed on the Petition to the extent that the claims (1) are cognizable in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or are subject to a legal excuse for any failure to exhaust in a proper manner. It is necessary for the Court to review portions of the state court record to resolve preliminary procedural issues, and it would also be helpful to receive briefing from Respondent. 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 will provide relevant portions of the state court record to this Court. 3. Potentially Applicable Standards of Law Because Petitioner is pro se and because the Court finds that focused briefing from
the parties would be beneficial in this case, the Court provides the following standards of law that might, or might not, be applicable to the Petition. A. Statute of Limitations The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a petitioner to seek federal habeas corpus relief within one year from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”2 28 U.S.C. § 2244(d)(1)(A). However, the one-year statute of limitations can be tolled (or suspended) under certain circumstances. AEDPA provides for tolling for all of “[t]he time during which a properly filed application for State post-
conviction or other collateral review ... is pending.” 28 U.S.C. § 2244(d)(2). A motion to reduce a sentence that is not a part of the direct review process and that requires re- examination of the sentence qualifies as a collateral review application that tolls the one- year statute of limitations. Wall v. Kholi, 562 U.S. 545, 555-56 (2011). Thus, to the extent that a petitioner properly filed an application for post-conviction relief or other collateral
challenge in state court, the one-year federal limitations period stops running on the filing date of the state court action and resumes when the action is completed. The statute of limitations can also be equitably tolled under exceptional circumstances. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
2 Several other triggering events for the statute of limitations exist—but are less common—and are set forth in subsections 2244(d)(1)(B)-(D):
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). (internal quotation marks omitted). In addition, AEDPA’s statute of limitations is subject to an actual innocence exception. A petitioner who satisfies the actual innocence gateway standard may have otherwise time-barred claims heard on the merits. McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931-32 (2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). Actual innocence in this context means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998). B. Exhaustion and Procedural Default A habeas petitioner must exhaust his or her remedies in the state courts before a
federal court can grant relief on constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state’s established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of
discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847. When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and it is clear that the state court would now refuse to consider it because
of the state’s procedural rules, the claim is procedurally defaulted. Gray, 518 U.S. at 161- 62. Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts; and (3) when the Idaho courts have rejected a claim on an adequate and independent state procedural ground. Id.; Baldwin v. Reese, 541 U.S. 27, 32 (2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
If a claim is procedurally defaulted, a federal court can still hear the merits of the claim if the petitioner meets one of two exceptions: (1) a showing of adequate legal cause for the default and prejudice arising from the default, see Coleman, 501 U.S. at 731, or (2) a showing of actual innocence, which means that a miscarriage of justice will occur if the claim is not heard in federal court, see Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray
v. Carrier, 477 U.S. 478, 488 (1986). 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, 477 U.S. at 488. To show “prejudice,” a petitioner generally 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). Cause for the default may exist as a result of ineffective assistance of counsel. For example, the failure on appeal to raise a meritorious claim of trial error may render that
claim procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“[I]n certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice.”). However, for ineffective assistance of counsel of trial or direct appeal counsel to serve as cause to excuse the default of a claim, that ineffective assistance claim must itself have been separately presented to the state appellate courts. Id. at 451 (“[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.”) If the ineffective assistance
asserted as cause was not fairly presented to the state courts, a petitioner must show that an excuse for that separate default exists, as well. A petitioner does not have a federal constitutional right to the effective assistance of counsel during state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 554 (1987); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general
rule is that any errors of counsel during a post-conviction action cannot serve as a basis for cause to excuse a procedural default. Coleman, 501 U.S. at 752. However, the Supreme Court established an exception to that general rule in Martinez v. Ryan, 566 U.S. 1 (2012). Martinez held that, in limited circumstances, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Supreme Court has described and clarified the Martinez cause and prejudice test as consisting of four necessary prongs: (1) the underlying claim of ineffective assistance of counsel must be a “substantial” claim; (2) the “cause” for the procedural default consists of there being “no counsel” or only “ineffective” counsel during the state collateral review
proceeding; (3) the state collateral review proceeding was the “initial” collateral review proceeding where the IATC claim could have been brought; and (4) state law requires that an IATC claim be raised in an initial-review collateral proceeding, or by “design and operation” such claims must be raised that way, rather than on direct appeal. Trevino v. Thaler, 569 U.S. 413, 423, 429 (2013). Any argument that a claim is procedurally defaulted must identify the proceeding in which the claim was purportedly defaulted and, if the claim was raised in state court at
any point (in a procedurally proper manner or not), must also include a citation to the state court record where the claim was raised. REQUEST FOR APPOINTMENT OF COUNSEL Petitioner has also requested appointment of counsel. There is no constitutional right to counsel in a habeas corpus action. Coleman, 501 U.S. at 755. A habeas petitioner has a
right to counsel, as provided by rule, if an evidentiary hearing is required in the case. See Habeas Rule 8(c). 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 the petitioner’s ability to articulate the claims in light of the complexity of the legal issues and
the petitioner’s likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). At this point, the Court concludes that, based on the evidence currently in the record (Dkt. 1), it will be unlikely that Petitioner will be able to meet the strict standards of 28 U.S.C. § 2254(d) for issuance of a writ of habeas corpus. Therefore, at this time the Court
will deny the request for appointment of counsel without prejudice. ORDER IT IS ORDERED: 1. Because Petitioner has paid the filing fee for this action, Petitioner’s Application to Proceed in Forma Pauperis (Dkt. 7) is MOOT. 2. Petitioner’s request for appointment of counsel (contained in the Petition) is DENIED without prejudice.
3. The Clerk of Court will serve (via ECF) a copy of the Petition (Dkt. 1), along with any attachments, 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 service of the Petition, Respondent may file 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 may consider the claims that were adjudicated on the merits by the Idaho Supreme Court; for any claims that appear to warrant relief or any claims not disposed of on the merits that appear subject to procedural defenses, the Court may then
determine whether those claims are barred by any procedural defenses and will call for additional briefing, evidence, or a hearing, if necessary. 5. Respondent must file with the responsive pleading or motion, or within a reasonable time 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—which must be provided to the Court if the Petition contains any sentencing
claims—must 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 must file a reply
(formerly called a traverse), containing a brief rebutting Respondent’s answer and brief, which must be filed and served within 28 days after service of the answer and brief. Respondent has the option of filing a sur-reply within 14 days after service of the reply. At that point, the case will be deemed ready for a final decision.
7. If the response to the habeas petition is a motion, Petitioner’s response must be filed and served within 28 days after service of the motion, and Respondent’s reply, if any, must be filed and served within 14 days thereafter. 8. In the response to the habeas petition, whether a motion or an answer and
brief, Respondent must include citations to all portions of the state court record that support Respondent’s assertions. Although Respondent may include citations to a state appellate court decision that describes events that took place in a lower court, Respondent must also include citations to the underlying lower court record. 9. No party may file supplemental responses, replies, affidavits, or other
documents not expressly authorized by the Local Rules or by this Order without first obtaining leave of Court. 10. No discovery may be undertaken in this matter unless a party obtains prior leave of Court, pursuant to Rule 6 of the Habeas Rules. 11. 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.
12. Each party must 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 must 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.) 13. 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. 14. Petitioner must at all times keep the Court and Respondent advised of any change in address. 15. If Petitioner’s custodian changes at any point during this litigation, Petitioner must file a Notice of Substitution of Respondent within 28 days of such change, identifying the person who is substituted as Respondent. See Fed. R. Civ. P. 25(d); Habeas Rule 2(a).
an DATED: December 9, 2019 S eS.
M Bub —— aS Chiet US District Court Judge
INITIAL REVIEW ORDER - 13