RONALD E. BUSH, Magistrate Judge.
Pending before the Court is Petitioner James Leroy Skunkcap's Petition for Writ of Habeas Corpus, challenging his Bannock County convictions, in two separate cases, of grand theft and attempting to elude a police officer (among other charges not before the Court at this time). (Dkt. 3.) The Petition is now fully briefed.
The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Dkt. 9.) 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 and dismissing this case with prejudice.
The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. (Dkt. 10.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). Petitioner does not challenge the Idaho Supreme Court's description of the underlying facts. Those facts are as follows:
State v. Skunkcap, 335 P.3d 561, 563-64 (Idaho 2014).
Petitioner was convicted by a jury, in two separate cases, with the theft of the two saddles
Petitioner filed the instant habeas petition in December 2014. On November 10, 2015, this Court granted Respondent's motion for partial summary dismissal. The Court dismissed Claims 1 and 2(b) for lack of jurisdiction and dismissed Claim 4 as procedurally defaulted. (Dkt. 17.) Further, Petitioner has stipulated that he is not entitled to habeas relief on Claim 3. (Dkt. 21 at 5.) Therefore, the following claims remain for adjudication on the merits:
(Pet. Dkt. 3, at 2-6; see Dkt. 17 at 4-5.)
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). 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).
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). Stated more simply, "Section 2254(d) applies regardless of the procedures employed or the decision reached by the state court, as long as a substantive decision was reached." Teti v. Bender, 507 F.3d 50, 57 (1st Cir. 2007).
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). Harrington v. Richter, 562 U.S. 86, 102 (2011). 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). To be entitled to habeas relief under § 2254(d)(1), "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (internal quotation marks omitted).
Though the source of clearly established federal law must come only 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. 2000). 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).
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). If the factual findings of the state court are not unreasonable, those findings must be presumed correct, and may be rebutted only by clear and convincing evidence, pursuant to 28 U.S.C. § 2254(e)(1). Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Even if a petitioner succeeds in demonstrating a constitutional error in his conviction, he is entitled to federal habeas relief only if the petitioner "can establish that [the error] resulted in `actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). A "reasonable possibility" of prejudice is insufficient. Id. Under the Brecht standard, an error is not harmless, and habeas relief must be granted, only if the federal court has "grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict." O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).
In Claim 2(a), Petitioner challenges the jury instruction setting forth the elements eluding an officer. The statute governing the crime of eluding an officer makes it a crime for "[a]ny driver of a motor vehicle who willfully flees or attempts to elude a pursuing police vehicle when given a visual or audible signal [including a signal by emergency lights or siren] to bring the vehicle to a stop." Idaho Code § 49-1404(1). The statute also states, "It is sufficient proof that a reasonable person knew or should have known that the visual or audible signal given by a peace officer was intended to bring the pursued vehicle to a stop." Id. The crime is a felony if, in the course of eluding the officer, the driver reaches speeds in excess of 30 miles per hour above the speed limit, causes property damage or bodily injury, or drives in a dangerous manner. Id. § 49-1404(2).
The eluding instruction given to Petitioner's jury provided as follows:
(State's Lodging A-2 at 245 (italics in original).)
The italicized language pertains to the "signal" element of the crime; that is, the visual or audible signal given by the police "must be given by emergency lights or siren which a reasonable person knew or should have known was intended to bring the pursued vehicle to a stop." Skunkcap, 335 P.3d at 568 n.1 (quoting the recommended Idaho Criminal Jury Instruction for attempting to elude a police officer). However, in the instruction given in Petitioner's case, the italicized language was listed after all of the elements of the crime and was not isolated to the "signal" element.
Petitioner claims that the italicized language in the instruction unconstitutionally relieved the prosecution of its burden of proof, presumably because its placement in the instruction "could have led the jury to find him guilty without consideration of the other elements of the crime listed above it." Skunkcap, 335 P.3d at 567. Petitioner specifically argues that the italicized language "would lead a juror to believe that [elements] 5. and 6. of the jury instruction"—willful flight and failing to stop at an official signal—were "already a proven fact." (Dkt. 21 at 3.)
Because Petitioner challenges a jury instruction that quotes a state statute, his burden to show constitutional error in the eluding instruction is "especially heavy." Waddington v. Sarausad, 555 U.S. 179, 190 (2009). "Even if there is some `ambiguity, inconsistency, or deficiency' in the instruction, such an error does not necessarily constitute a due process violation." Id. (quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004)). To succeed on his due process claim that the eluding instruction was unconstitutional, Petitioner "must show both that the instruction was ambiguous and that there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Id. at 190-91 (internal quotation marks omitted).
In determining whether a jury instruction violated due process, a federal habeas court may not judge the jury instruction "in artificial isolation," but rather must consider the instruction "in the context of the instructions as a whole and the trial record." Id. at 191 (internal quotation marks omitted). Therefore, the Court cannot grant habeas relief on Petitioner's Claim 2(b) unless every fairminded jurist would necessarily conclude that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks omitted); see also Richter, 562 U.S. at 101 ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision.") (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).)
Although the Idaho Supreme Court noted that "the way that the instruction was drafted" in Petitioner's case was not recommended, the court rejected Petitioner's challenge because Petitioner failed to establish that "a reasonable juror would have interpreted" the instruction incorrectly. The court concluded:
Skunkcap, 335 P.3d at 568. Thus, the court was "not persuaded that the instruction misled the jury as to the elements of the crime that the State was required to prove beyond a reasonable doubt." Id.
This Court agrees with the Idaho Supreme Court that the eluding instruction was not drafted in the most precise manner. Had the italicized language been placed within the description of the "signal" element, it would have been much clearer that the language about a reasonable person knowing that the signal was intended to stop the vehicle was not sufficient, by itself, to satisfy all of the elements of the crime.
However, the Idaho Supreme Court went on to determine that Petitioner had not shown a reasonable likelihood that that the jury applied the eluding instruction in a manner that relieved the state of its burden of proof, and that determination was neither contrary to, nor an unreasonable application of, the clearly-established Supreme Court precedent as found in Waddington v. Sarausad, Middleton v. McNeil, and Estelle v. McGuire. See 28 U.S.C. § 2254(d). The potential ambiguity in the instruction is insufficient to render the state court's conclusion unreasonable. Nor was the Idaho Supreme Court's decision based on an unreasonable finding of fact. Therefore, Petitioner is not entitled to relief on Claim 2(a).
Claim 5 asserts that the prosecutor committed misconduct, in the theft case, by eliciting testimony from Detective Ian Nelson, during the state's case-in-chief, regarding Petitioner's decision not to speak to police after his arrest:
(State's Lodging A-6 at 405-09.)
At this point, the trial judge stopped the prosecutor's questioning and stated to the jury, "Ladies and gentlemen, people have the right if they want to not to talk with the police, and so I don't want you to hold it against [Petitioner] that he wouldn't give a statement." (Id. at 409.)
The prosecutor later returned to a similar line of questioning:
(State's Lodging A-6 at 427-28.) Petitioner did not object to either line of questioning.
Because Claim 5 asserts prosecutorial misconduct based on testimony about Petitioner's refusal to speak to police, the claim implicates both the Fifth Amendment right to remain silent and the Fourteenth Amendment right to due process.
The Fifth Amendment guarantees the right to be free from compelled self-incrimination. This right encompasses not only the right to refrain from testifying against oneself, but—in many circumstances—it also "forbids . . . comment by the prosecution on the accused's silence." Griffin v. California, 380 U.S. 609, 616 (1965). In considering whether a prosecutor's comments on a defendant's silence violate the Fifth Amendment, the most important questions are (1) whether the defendant's silence preceded or followed Miranda warnings,
Once Miranda warnings have been given to a suspect, that suspect's later silence cannot be used by the prosecution at all, either as substantive evidence of guilt or as impeachment. Doyle v. Ohio, 426 U.S. 610, 611 (1976) (holding that either of these uses of post-arrest,
In certain circumstances, a prosecutor's mere attempt to elicit testimony regarding a defendant's silence may deprive a defendant of due process, even if there is no underlying Fifth Amendment violation. Greer v. Miller, 483 U.S. 756, 765 (1987). In Greer, the prosecutor asked an improper question regarding a defendant's silence, but the trial court sustained the defendant's objection and advised the jury to disregard any questions to which objections were sustained. The Supreme Court recognized that "[a]lthough the prosecutor's question did not constitute a Doyle violation, the fact remains that the prosecutor attempted to violate the rule of Doyle by asking an improper question in the presence of the jury"; the Court then analyzed whether the prosecutor's misconduct violated due process and determined that it did not. Id.
However, to constitute a due process violation, the prosecutor's misconduct must be egregious; an "ordinary trial error of a prosecutor" does not suffice. Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). Further, although a prosecutor has a "duty to refrain from improper methods calculated to produce a wrongful conviction," Berger v. United States, 295 U.S. 78, 88 (1935), such methods will warrant habeas relief only if they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process,'" Darden v. Wainwright, 477 U.S. 168, 180 (quoting Donnelly, 416 U.S. at 643).
A court must consider the record as a whole when considering whether prosecutorial misconduct resulted in a due process violation. See United States v. Young, 470 U.S. 1, 16-17 (1985) ("Viewed in context, the prosecutor's statements, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice."). When reviewing prosecutorial misconduct claims under the "unreasonable application" prong of § 2254(d)(1), federal courts must keep in mind that this standard is a "very general one" that affords courts "leeway in reaching outcomes in case-by-case determinations." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam) (internal quotation marks and alterations omitted).
The Idaho Supreme Court held that the prosecutor committed misconduct in questioning Detective Nelson about Petitioner's refusal to speak to police, stating that "[t]here is simply no excuse for [the prosecutor's] conduct in this case." Skunkcap, 335 P.3d at 574. The court found that the prosecutor's "sole purpose" in eliciting the testimony "was to seek to have the jury infer that [Petitioner] must be guilty because he would not talk after he was arrested." Id. at 573. In eliciting testimony that Petitioner refused to speak with police, but that Petitioner's "female companion was willing to talk about the theft of the saddles, . . . the deputy prosecutor was obviously attempting to [imply to the jury] that she was willing to talk because she was innocent, but [Petitioner] was unwilling to talk because he was guilty." Skunkcap, 335 P.3d at 574. The prosecutor's questions "also let the jury know that [Petitioner] was in jail on some other charge, because Detective Nelson went to [Petitioner's] jail cell to tell him that he would be charged with the theft of the saddles." Id. According to the Idaho Supreme Court, the prosecutor's conduct constituted "a blatant violation of his duty as a prosecutor and of [Petitioner's] constitutional rights." Id.
Nonetheless, the court held that Petitioner was not prejudiced by the prosecutor's questions or by the testimony elicited by those questions, citing the following evidence of Petitioner's guilt:
Id. at 575. Considering all of this evidence, the Idaho Supreme Court was "not persuaded that there is a reasonable likelihood that the deputy prosecutor's misconduct affected the jury's verdict." Id.
Here, Petitioner's refusal to speak to police occurred before he received Miranda warnings, and the prosecutor elicited testimony of Petitioner's silence during his case-in-chief.
Respondent argues that, contrary to the state court's decision, the prosecutor did not commit misconduct or violate the Fifth Amendment by inquiring as to Petitioner's silence during its case-in-chief. Respondent asserts the Idaho Supreme Court applied a broader standard than that required by the Due Process Clause. (Dkt. 18 at 23.) Compare State v. Moore, 965 P.2d 174, 180 (Idaho 1998) ("[D]efendants' Fifth Amendment right not to have their silence used against them in a court proceeding is applicable
However, the Court need not address whether the Due Process Clause or the Fifth Amendment were violated in Petitioner's case because—even assuming that the prosecutor committed misconduct and that the testimony regarding Petitioner's silence violated the Fifth Amendment—this Court agrees with the Idaho Supreme Court that any constitutional error was not prejudicial. See Brecht, 507 U.S. at 637.
Even absent Detective Nelson's testimony about Petitioner's silence, the evidence of Petitioner's guilt—which included the testimony of an eyewitness who watched the crime and took down the license plate of the car used in the theft—was overwhelming. Petitioner attempts to challenge the circumstances under which the store employee eyewitness identified Petitioner as the man who took the saddles. The witness identified Petitioner "in the hallway at the courthouse," where Petitioner was in restraints, "with white police holding his arms and other white people around, and [Petitioner was] the only Indian there." (Dkt. 21 at 11.) However, Petitioner's habeas petition does not include a claim that the witness identification was unduly suggestive. Therefore, the identification cannot be challenged.
The store employee testified at trial she was "one hundred percent sure" that Petitioner was the man she saw loading the saddle into the trunk of the light blue car. (State's Lodging A-6 at 270.) This eyewitness testimony, combined with (1) the testimony of Petitioner's friend, who saw a saddle in the trunk of the car, and (2) the fact that Petitioner was arrested in a light blue car with the same license plates as the car used to steal the saddles, establishes that Petitioner did not suffer "actual prejudice" from any constitutional error in the prosecutor's questioning or the resulting testimony regarding Petitioner's refusal to speak to police. Brecht, 507 U.S. at 637. The Court is not persuaded that the prosecutor's conduct or the challenged testimony had a "substantial and injurious effect or influence in determining the jury's verdict." Id. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
The Idaho Supreme Court's rejection of Claim 2(a) was reasonable. Further, as to Claim 5, this Court need not consider whether there was constitutional error with respect to the prosecutor's conduct and Detective Nelson's testimony about Petitioner's pre-Miranda silence, because Petitioner suffered no prejudice from any such error. Finally, because Petitioner has stipulated as to the denial of Claim 3, and because all other claims have previously been dismissed, the Court will deny the Petition with prejudice.
