B. LYNN WINMILL, Chief District Judge.
Pending before the Court is Petitioner Albert Pete Veenstra III's Amended Petition for Writ of Habeas Corpus, challenging his 2005 Gooding County conviction of two counts of lewd conduct with a minor under sixteen years of age. (Dkt. 33.) The Court previously dismissed Claims One, Three, and Six through Eleven as procedurally defaulted. (Dkt. 56). The merits of the remaining claims in the Amended Petition— Claims Two, Four, Five, and Twelve—are now fully briefed. (Dkt. 61, 93.)
Having carefully reviewed the record in this matter, including the state court record, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying habeas corpus relief.
The Court takes judicial notice of the records from Petitioner's state court proceedings, lodged by Respondent on September 12, 2012; January 11, 2013; and March 5, 2015. (Dkt. 10, 18, 19, 88.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
The Court has previously recited the facts underlying Petitioner's convictions (see Dkt. 56), and the Idaho Court of Appeals described them as follows:
(State's Lodging B-4 at 1-2; see also State's Lodging F-9 at 3 n.1.)
The jury found Petitioner guilty of both counts. In November 2005, Petitioner was sentenced to two concurrent unified prison terms of thirty years, with fourteen years fixed. (Id. at 2; Am. Pet. at 1-2.) His convictions and sentences were affirmed on appeal.
Petitioner's initial and successive state postconviction petitions were unsuccessful. (State's Lodging F-9.) Petitioner also filed a motion for reduction or correction of sentence under Idaho Criminal Rule 35. Although the minutes of the sentencing hearing
Petitioner filed his initial federal Petition in December 2011 and, after exhausting additional claims in state court, filed an Amended Petition in May 2013. The claims remaining for adjudication on the merits are the following:
(Am. Pet., Dkt. 33-1.)
Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment when the federal court determines that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal habeas relief is further limited to instances where the state court's adjudication of the petitioner's claim
28 U.S.C. § 2254(d). Although a federal habeas court reviews the state court's "last reasoned decision" in determining whether a petitioner is entitled to relief, Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991), the state court need not "give reasons before its decision can be deemed to have been `adjudicated on the merits'" under § 2254(d), Harrington v. Richter, 562 U.S. 86, 100 (2011).
When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test.
Under the first test, a state court's decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002).
Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1) the petitioner must show that the state court—although identifying "the correct governing legal rule" from Supreme Court precedent—nonetheless "unreasonably applie[d] it to the facts of the particular state prisoner's case." Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). "Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error." White v. Woodall, 134 S.Ct. 1697, 1706 (2014).
A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that fair-minded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Richter, 562 U.S. at 102. The Supreme Court has emphasized that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (internal citation omitted).
Though the source of clearly established federal law must come from the holdings of the United States Supreme Court, circuit precedent 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. 1999). However, circuit law 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).
As to the facts, the United States Supreme Court has clarified "that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).
When a petitioner contests the reasonableness of the state court's factual determinations, the petitioner must show that the state court decision was based upon factual determinations that were "unreasonable . . . in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). A "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 130 S.Ct. 841, 849 (2010).
The United States Court of Appeals for the Ninth Circuit has identified five types of unreasonable factual determinations that result from procedural flaws that occurred in state court proceedings: (1) when state courts fail to make a finding of fact; (2) when courts mistakenly make factual findings under the wrong legal standard; (3) when "the fact-finding process itself is defective," such as when a state court "makes evidentiary findings without holding a hearing"; (4) when courts "plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim"; or (5) when "the state court has before it, yet apparently ignores, evidence that supports petitioner's claim." Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
This strict deferential standard of § 2254(d) applies to habeas claims except in the following narrow circumstances: (1) where the state appellate court did not decide a properly-asserted federal claim; (2) where the state court's factual findings are unreasonable under § 2254(d)(2); or (3) where an adequate excuse for the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In those circumstances, the federal district court reviews the claim de novo. In such a case, as in the pre-AEDPA era, a district court can draw from both United States Supreme Court and well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).
Under de novo review, if the factual findings of the state court are not unreasonable, the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a state court factual determination is unreasonable, or if there are no state court factual findings, the federal court is not limited by § 2254(e)(1). Rather, the federal district court may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
In Claim Four, Petitioner argues that his trial counsel rendered ineffective assistance by failing to object to move for a mistrial after a witness offered testimony referencing the Touchette polygraph.
As noted above, Petitioner took a polygraph administered by Probation Officer Touchette. This polygraph gave rise to information that eventually led to Petitioner being charged with a probation violation. "At trial, [the] probation officer . . . gave testimony that [Petitioner] had allegedly violated probation by selling prescription drugs. After defense counsel questioned the probation officer about the process of violating a probationer" (State's Lodging F-9 at 6), the probation officer's testimony continued as follows:
(State's Lodging A-2 at 120-22) (emphasis added). The probation officer indicated that although he had initially decided not to pursue probation violation charges against Petitioner based on his sale of prescription drugs, the probation officer changed his mind after the lewd conduct allegations surfaced. (Id. at 122.)
Petitioner alleges (1) that the probation officer's reference to the Touchette polygraph violated the trial court's previous order that during the trial no reference could be made to any polygraph, and (2) that Petitioner's trial counsel should have objected to the reference or moved for a mistrial. (Dkt. 33-1 at 12.)
The Sixth Amendment to the United States Constitution provides that a criminal defendant has a right to the effective assistance of counsel in his defense. The standard for ineffective assistance of counsel claims was identified in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show that (1) "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and (2) those errors "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
Whether an attorney's performance was deficient is judged against an objective standard of reasonableness. Id. at 687-88. A reviewing court's inquiry into the "reasonableness" of counsel's actions must not rely on hindsight:
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense or which arguments to make, "are virtually unchallengeable" if "made after thorough investigation of law and facts relevant to plausible options." Strickland, 466 U.S. at 690. Moreover, an attorney who decides not to investigate a potential defense theory is not ineffective so long as the decision to forego investigation is itself objectively reasonable:
Id. at 690-91.
The Ninth Circuit has provided some insight into the Strickland standard when evaluating an attorney's "strategy calls." These cases are instructive in the Court's assessment of whether the state court reasonably applied Strickland. Duhaime, 200 F.3d at 600. First, tactical decisions do not constitute ineffective assistance simply because, in retrospect, better tactics are known to have been available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Second, a mere difference of opinion as to tactics does not render counsel's assistance ineffective. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981).
If a petitioner shows that counsel's performance was deficient, the next step is the prejudice analysis. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. As the Strickland Court instructed:
Id. at 695-96. To constitute Strickland prejudice, "[t]he likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. 86 at 112.
When evaluating a claim of ineffective assistance of counsel in a federal habeas proceeding under § 2254(d), the Court's review of that claim is "doubly deferential." Pinholster, 563 U.S. at 190.
In addressing Petitioner's claim that his counsel was ineffective for failing to object or request a mistrial when the probation officer referenced the Touchette polygraph, the Idaho Court of Appeals appropriately cited Strickland v. Washington as the governing law regarding ineffectiveness claims. (State's Lodging F-9 at 5.) After reciting the above testimony given by Petitioner's probation officer, the court held that "the lack of objection [by Petitioner's counsel was] a valid tactical decision." The court noted that the jury "was unaware of the polygraph [Petitioner] took with regard to the conduct at issue in this case and had no reason to infer that the polygraph referred to was even taken by" Petitioner. (Id. at 7.) The court continued:
(Id.) The court of appeals also held that, for the same reasons, an objection or request for a mistrial would not have been successful, and Petitioner therefore had not shown prejudice as a result of trial counsel's actions.
The Idaho Court of Appeals' rejection of Claim Four was not contrary to, nor did it involve an unreasonable application of, clearly-established Supreme Court precedent, and Petitioner has not identified any factual finding of the state courts as unreasonable. See U.S.C. § 2254(d). The polygraph reference was brief and vague, and the Court cannot conclude that the lack of an objection or request for a mistrial constituted deficient attorney performance. Further, Petitioner has not established that he suffered prejudice as a result of his trial counsel's actions. Thus, the Court will deny Claim Four.
Claim Five asserts that Petitioner's trial counsel rendered ineffective assistance by failing to object to expert testimony regarding psychological issues and behavior of children who disclose sexual abuse.
Gooding County Sheriff Shaun Gough testified for the prosecution. Sheriff Gough explained that he had been involved in the investigation of "a couple dozen" sexual misconduct cases and had been trained to investigate sex crimes at POST, the Peace Officer's Standards and Training Academy. (State's Lodging A-2 at 134-35.) The sheriff later testified as follows:
(Id. at 141.)
The prosecutor then asked the sheriff about the fact that, during their trial testimony, Petitioner's victims recounted more instances of sexual molestation than they had initially disclosed to law enforcement:
(Id. at 142-43.)
Petitioner claims that his trial counsel should have objected to this testimony because the prosecution did not establish that the sheriff was qualified offer expert testimony on the reporting of misconduct by victims of child sex abuse. (Dkt. 33-1 at 14-15.)
After reciting the above testimony, the Idaho Court of Appeals held that an objection to "this brief line of questioning" would not have been successful and thus that Petitioner could not show prejudice from his trial counsel's failure to object. (State's Lodging F-9 at 9.) The court stated that any objection "would have done no more than call greater attention to the issue" and that the sheriff appeared qualified to testify to the general trends of sexual abuse victims' disclosures.
The Idaho Court of Appeals' decision that Petitioner could not show prejudice from trial counsel's failure to object to the sheriff's expert testimony was not contrary to, or an unreasonable application of, clearly-established Supreme Court precedent. Additionally, Petitioner has not pointed to any factual finding by the state court that he considers unreasonable. Because Petitioner cannot establish that an objection to the sheriff's testimony would have been granted, he cannot show Strickland prejudice with respect to Claim Five.
In Claim Two, Petitioner asserts that his direct appeal counsel was ineffective in failing, on direct appeal, to argue that the Kurz polygraph should have been admitted as substantive evidence of innocence and to bolster Petitioner's credibility, pursuant either to (1) Idaho Rule of Evidence 801(d)(2)(A) as an admission of a party opponent, or (2) Idaho Rule of Evidence 803(8) as a public record. (Dkt. 33-1 at 6-7.) Although direct appeal counsel did challenge the exclusion of the results of the Kurz polygraph—which tended to show that Petitioner's denial of the lewd conduct allegations was truthful— counsel did so by arguing that the statement was not offered for the truth of the matter asserted, but for the limited purpose of rebutting the state's theory that Petitioner's flight to Mexico showed consciousness of guilt.
On the first day of trial, defense counsel made an oral motion in limine seeking admission of the results of the Kurz polygraph. The trial court denied the motion. Counsel later moved to introduce a police report that referred to the Kurz polygraph, but the court denied that motion as well. On direct appeal, the court of appeals—without deciding whether the exclusion of the Kurz polygraph evidence was erroneous—held that any error in excluding the evidence was harmless. (State's Lodging at B-5.) On appeal from the denial of Petitioner's postconviction petitions, the Idaho Court of Appeals held that direct appeal counsel did not render ineffective assistance in failing to argue that the evidence was admissible under Rules 801 and 803. (State's Lodging F-9.)
The Strickland principles identified above in the context of ineffective assistance of trial counsel claims apply equally to claims of ineffective assistance of direct appeal 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, 751-54 (1983). "Nothing 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. at 754. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52.
To show prejudice with respect to direct appeal counsel, a petitioner must show that his appellate attorney failed to raise an issue obvious from the trial record that probably would have resulted in reversal. Miller v. Keeney, 882 F.2d 1428, 1434 n.9 (9th Cir. 1989). If a petitioner does not show that an attorney's act or omission would probably have resulted in reversal, then he cannot satisfy either prong of Strickland: appellate counsel was not ineffective for failing to raise such an issue, and petitioner suffered no prejudice as a result of it not having been raised. Id. at 1435.
In addressing Claim Two, the Idaho Court of Appeals held that polygraph evidence used to bolster a defendant's credibility is inadmissible "because it invades the province of the jury," and that the trial court thus properly disallowed the evidence as substantive proof. (State's Lodging F-9 at 11.) The court of appeals held that because the evidence was inadmissible, and therefore Claim Two was without merit, Petitioner's direct appeal counsel was not ineffective in not raising that argument. (Id.)
The Idaho Court of Appeals' rejection of Claim Two was eminently reasonable. See 28 U.S.C. § 2254(d). The Idaho Supreme Court had made clear, several years before Petitioner's direct appeal, that polygraph results were inadmissible (1) as substantive evidence of guilt or innocence, or (2) to undermine or bolster the credibility of the defendant. See State v. Perry, 81 P.3d 250, 524-25 (Idaho 2003) ("In this case, the results of the polygraph are useful to bolster Perry's credibility but do not provide the trier of fact with any additional information that pertains to Perry's case. The fact of whether the alleged act occurred is for the jury to decide." (emphasis added)).
Direct appeal counsel understandably did not include Claim Two in the appellate briefing because it was extremely weak—polygraph results simply are not admissible in Idaho as substantive evidence or credibility evidence. See Miller, 882 F.2d at 1434 ("[T]he weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. . . . Appellate counsel will therefore frequently remain above an objective standard of competence . . . and have caused her client no prejudice . . . for the same reason—because she declined to raise a weak issue."). Appellate counsel made the reasonable tactical decision to present the best argument for admissibility of the Kurz polygraph results—that the results were admissible not as substantive proof, but as evidence showing Petitioner's state of mind when he fled to Mexico. That this argument was unsuccessful does not mean that direct appeal counsel was ineffective. Bashor, 730 F.2d at 1241.
The double deference that applies when reviewing ineffective assistance claims in habeas proceedings leaves no room for this Court to second-guess the tactical decision of Petitioner's direct appeal counsel with the benefit of hindsight. See Pinholster, 563 U.S. at 190; Strickland, 466 U.S. at 689. Therefore, Petitioner is not entitled to relief on Claim Two.
In Claim Twelve, Petitioner asserts that he was denied due process because he was never placed on the rider program referenced in the written judgment of conviction.
According to the minutes of the sentencing proceeding, the trial judge sentenced Petitioner to concurrent unified prison terms of thirty years, with fourteen years fixed. (State's Lodging A-2 at 38.) However, the initial and amended judgment, after reciting the sentence of imprisonment, went on to state: "It is further ordered that the Department of Correction take [Petitioner] into custody, for the commencement of the one hundred and eighty (180) program, within fourteen (14) days of the date this Judgment is file stamped." (State's Lodging A-1 at 42) (emphasis added).
Petitioner filed a motion for correction or reduction of sentence pursuant to Idaho Criminal Rule 35, contending that, contrary to the Judgment, he was not placed on the 180-day rider program. (State's Lodging G-1 at 1-4.) One of Petitioner's exhibits to his motion was a copy of the Amended Judgment, with the rider language crossed out and with the following notation:
(Id. at 66.)
The district judge who presided over Petitioner's Rule 35 motion was the same judge who imposed Petitioner's sentence. (Id. at 78.) The judge noted that "Matt" was the judge's law clerk, who had apparently requested deletion of the rider paragraph soon after the amended judgment was entered. The court determined the rider language was a clerical error, and the record before the court demonstrated that Petitioner was "never sent on a retained jurisdiction program." (Id.)
Petitioner contends in Claim Twelve that the Due Process Clause required the court to place him on a rider program because the written judgment ordered it. Therefore, Claim Twelve asserts a substantive, rather than a procedural, due process claim. Compare Wolff v. McDonnell, 418 U.S. 539, 582 (1974), with Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The principle of substantive due process prohibits the government from actions that "shocks the conscience" or that violate a right "so rooted in the traditions and conscience of our people as to be ranked as fundamental or . . . implicit in the concept of ordered liberty." Rochin v. California, 342 U.S. 165, 169, 209 (1952) (internal quotation marks omitted).
The Idaho Court of Appeals affirmed the denial of Petitioner's Rule 35 motion, holding that the written judgment's reference to 180-day rider or retained jurisdiction program was a clerical error. (State's Lodging H-17 at 3.) The court of appeals relied on the Idaho legal principle that "[t]he legal sentence consists of the words pronounced in open court by the judge, not the words appearing in the written order of commitment." State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct. App. 1989).
The state courts' factual finding that the rider language was a clerical error is presumed correct because Petitioner has not shown that the finding is unreasonable. The judge who sentenced Petitioner expressly stated that the rider language was simply a mistake, and there is nothing in the record that calls that statement into question. Further, Petitioner has not established that the Idaho Court of Appeals' decision rejecting Claim Twelve was objectively unreasonable. The Court has found no United States Supreme Court case finding a due process violation based on a court or corrections department failing to comply with language that was mistakenly included in the written judgment as a clerical error.
For the foregoing reasons, Petitioner is not entitled to habeas relief with respect to Claims Two, Four, Five, or Twelve, and his remaining claims were dismissed as procedurally defaulted. Therefore, the Petition will be denied.
