Petition for Writ of Certiorari — Bradley Joseph Vanzant, Petitioner v. Keith Yordy, Warden

Case: 19-35232, 05/22/2019, ID: 11306174, DktEntry: 6, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

MAY 22 2019

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BRADLEY JOSEPH VANZANT,

Petitioner-Appellant,

v.

KEITH YORDY, Warden,

No.

19-35232

D.C.No. 1:17-cv-00109-CWD

District of Idaho,

Boise

ORDER

Respondent-Appellee.

Before:

BYBEE and BEA, Circuit Judges.

We have received and reviewed appellant’s response to this court’s March

26, 2019, order to show cause.

The request for a certificate of appealability (Docket Entry No. 2) is denied

because the notice of appeal was not timely filed and appellant did not file a

motion to extend time for appeal in the district court within the jurisdictional time

limit. See 28 U.S.C. §§ 2107, 2253(c)(2); Fed. R. App. P. 4(a)(5)(A).

Any pending motions are denied as moot.

DENIED.

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

BRADLEY JOSEPH VANZANT,

Case No. 1:17-cv-00109-CWD

Petitioner,

MEMORANDUM DECISION AND

ORDER

v.

KEITH YORDY,

Respondent.

Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho

state prisoner Bradley Joseph Vanzant (“Petitioner”), challenging Petitioner’s Ada

County conviction for possession of a controlled substance. (Dkt. 3.) Respondent has

filed a Motion for Summary Dismissal, arguing that Claim 1 is noncognizable and that

Petitioner’s remaining claims are procedurally defaulted. (Dkt. 13.) The Motion is now

ripe for adjudication.

The Court takes judicial notice of the records from Petitioner’s state court

proceedings, which have been lodged by Respondent. (Dkt. 12.) See Fed. R. Evid.

201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.l (9th Cir. 2006).

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). (Dkt. 10.)

Having carefully reviewed the record, including the state court record, the Court finds

that the parties have adequately presented the facts and legal arguments in the briefs and

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record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).

Accordingly, the Court enters the following Order granting Respondent’s Motion and

dismissing this case with prejudice.

BACKGROUND

In the Fourth Judicial District Court in Ada County, Idaho, Petitioner pleaded

guilty to possession of methamphetamine, in violation of Idaho Code § 37-2732(c).

(State’s Lodging B-4 at 1.) He received a unified sentence of six years in prison with

three and one-half years fixed. Petitioner filed an Idaho Criminal Rule 35 motion for

reduction of sentence, which was denied. (State’s Lodging A-4, A-7.)

Petitioner filed a direct appeal, arguing that his sentence was excessive under

Idaho law and that the trial court abused its discretion in denying his Rule 35 motion.

(State’s Lodging B-l.) The Idaho Court of Appeals affirmed, and the Idaho Supreme

Court denied review. (State’s Lodging B-4, B-6.)

Petitioner next filed a petition for state post-conviction relief, arguing that his

guilty plea was involuntary and that Petitioner’s trial counsel and direct appeal counsel

rendered ineffective assistance. (State’s Lodging C-l at 4-6.) The Ada County Public

Defender’s Office was appointed to represent Petitioner in the post-conviction

proceedings. {Id. at 39.) The public defender’s office later withdrew, and new counsel

appeared on behalf of Petitioner. {Id. at 44.)

The trial court held a hearing on the state’s motion to dismiss, concluding that the

claims identified in the state’s motion were conclusory and not supported by admissible

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evidence. (State’s Lodging C-2 at 13.) However, because two of Petitioner’s claims had

not been cited by the state in its motion to dismiss, the court gave Petitioner twenty days

to “file additional affidavits and/or briefs laying out specifics as to these two issues and

these two issues only.” (Id. at 14.)

Petitioner’s post-conviction counsel did not submit additional evidence or briefing.

As a result, Petitioner filed a “Motion for Conflict Free Counsel,” asserting that his post­

conviction attorney would not adequately assist him. (Id. at 84.) Petitioner sought new

counsel, stating “there is absolutely no type of attorney [c]lient relationship between the

Petitioner” and his attorney. (Id.) The trial court denied Petitioner’s motion and dismissed

the post-conviction petition. (Id. at 88-104 and 89 at n.2.)

Petitioner, through new counsel, appealed the dismissal of the petition, arguing

only that the post-conviction court erred by denying Petitioner’s motion for conflict-free

counsel. (State’s Lodging D-l, D-3.) Petitioner did not appeal any of the substantive

claims raised in his post-conviction conviction. The Idaho Court of Appeals affirmed the

dismissal of the petition, and the Idaho Supreme Court denied review. (State’s Lodging

D-4, D-7.)

Petitioner’s instant federal habeas petition asserts the following claims: (1) the

state district court violated Petitioner’s right to due process by denying his motion for

conflict-free counsel, during post-conviction proceedings, without holding a hearing; (2)

Petitioner’s guilty plea was involuntary and resulted from ineffective assistance of trial

counsel; and (3) Petitioner’s trial counsel rendered ineffective assistance by failing (a) to

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call witnesses, (b) to challenge the drug amount discrepancies, (c) to review audio and

video recordings of the arrest, and (d) to file a motion to suppress. (Dkt. 3; see also Dkt. 7

at 2.)

The Court previously reviewed the Petition and allowed Petitioner to proceed on

his claims to the extent those 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

subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 2-3.)

DISCUSSION

Federal habeas corpus relief may be granted only 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).

The Rules Governing Section 2254 Cases (“Habeas Rules”) authorize the Court to

summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the

face of the petition and any attached exhibits,” as well as those records subject to judicial

notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4; see

Fed. R. Evid. 201(b); Dawson, 451 F.3d at 551 n.l. Where appropriate, a respondent may

file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599,

602 (9th Cir. 1989).

Respondent argues that Claim 1 is noncognizable, that Claims 2 and 3 are

prOcedurally defaulted, and that no legal excuse for the default exists. For the reasons that

follow, the Court agrees.

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1.

Claim 1 Is Subject to Dismissal as Noncognizable

Claim 1 asserts that the post-conviction court improperly deprived Petitioner of

due process by denying his motion for “conflict free” counsel without holding a hearing

or otherwise inquiring into the situation. However, claims of error during state

postconviction proceedings are not cognizable on federal habeas review. Franzen v.

Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam).

Further, there is no federal constitutional right to counsel during state post­

conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases

establish that the right to appointed counsel extends to the first appeal of right, and no

further.”); Murray v. Giarratano, 492 U.S. 1, 7, (1989) (“[N]either the Due Process

Clause of the Fourteenth Amendment nor the equal protection guarantee of ‘meaningful

access’ require[s] [a] State to appoint counsel for indigent prisoners seeking state

postconviction relief.”); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993) (“[T]he

protections of the Sixth Amendment right to counsel do not extend to either state

collateral proceedings or federal habeas corpus proceedings.”). Though ineffective

assistance of initial post-conviction counsel can constitute cause to excuse the default of

an ineffective-assistance-of-trial-counsel claim, it is not itself an independent

constitutional claim. See Martinez v. Ryan, 566 U.S. 1 (2012). i

For these reasons, Claim 1 is noncognizable and must be dismissed.

This cause-and-prejudice issue will be discussed in more detail in Section 2.C., below.

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2.

Claims 2 and 3 Are Subject to Dismissal as Procedurally Defaulted

A.

Standards ofLaw

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. “Fair presentation” requires a petitioner to describe both the operative facts

and the legal theories upon which the federal claim is based. Gray v. Netherland, 518

U.S. 152, 162-63 (1996).

The mere similarity between a federal claim and a state law claim, without more,

does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364,

365-66 (1995) (per curiam). General references in state court to “broad constitutional

principles, such as due process, equal protection, [or] the right to a fair trial,” are likewise

insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). The law is clear

that, for proper exhaustion, a petitioner must bring his federal claim before the state court

by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d

666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).

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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 said to be 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 hear the merits of the claim

only if the petitioner meets one of two exceptions: (1) a showing of adequate legal cause

for the default and prejudice arising from the default, 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 Coleman, 501 U.S. at 731; Schlup v. Delo, 513 U.S. 298, 329 (1995);

Murray v. Carrier, All U.S. 478, 488 (1986). Neither an assertion of cause and prejudice

nor an assertion of actual innocence under Schlup is an independent constitutional claim.

Rather, these are federal procedural arguments that, if sufficiently established by the

petitioner, allow a federal court to consider the merits of an otherwise procedurallydefaulted constitutional claim.

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B.

Claims 2 and 3 Are Procedurally Defaulted

The most straightforward manner in which to resolve the exhaustion and

procedural default status of Petitioner’s federal claims is to review which claims were

raised and addressed on the merits in the state court appellate proceedings.

The only claim Petitioner raised on direct appeal was that his sentence was

excessive under Idaho law. No such claim is included in the Petition.2

On appeal from the dismissal of his post-conviction petition, Petitioner raised only

Claim 1, which—as the Court has already explained—is not cognizable. Thus, Petitioner

did not fairly present Claim 2 or 3 to the Idaho appellate courts. Because it is now too late

to do so, these claims are procedurally defaulted. See Gray, 518 U.S. at 161-62.

C.

Petitioner Has Not Shown Cause and Prejudice, or Actual Innocence, to

Excuse the Procedural Default of His Claims

Petitioner does not dispute that Claims 2 and 3 are procedurally defaulted.

However, Petitioner asserts that cause and prejudice exist to excuse the default pursuant

to Martinez v. Ryan, 566 U.S. 1 (2012).

Because there is no federal constitutional right to post-conviction review counsel,

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 United States Supreme Court established a limited exception to that general rule in

Martinez, which held that, in limited circumstances, “[inadequate assistance of counsel

2

Even if Petitioner had asserted such a claim, it would not be cognizable because it is based on

state law. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for

errors of state law.”).

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at initial-review collateral proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial.” 566 U.S. at 9. Martinez does not

apply to any claims other than claims of ineffective assistance of trial counsel (“IATC”).

Davila v. Davis, 137 S. Ct. 2058, 2063 (2017) (holding that Martinez does not apply to

underlying claims of ineffective assistance of direct appeal counsel); Hunton v. Sinclair,

732 F.3d 1124, 1126-27 (9th Cir. 2013) (holding that Martinez does not apply to claims

under Brady v. Maryland).

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 trial 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. 416, 423, 429 (2013).

In this case, Claims 2 and 3 fail the third prong of the Martinez exception.

Contrary to Petitioner’s contention (see Dkt. 16 at 4-6), the default of these claims did not

occur in the initial collateral review proceeding in the state district court. That petition

asserted, and the initial post-conviction court squarely addressed, Claim 2 and all

subparts of Claim 3. (See State’s Lodging C-l at 94-102.)

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Rather, the default of Claims 2 and 3 occurred on appeal from the dismissal of the

post-conviction petition, when Petitioner failed to present those claims in his appellate

briefing. Because a petitioner may not use, as cause to excuse a default, any attorney

error that occurred in “appeals from initial-review collateral proceedings,” Martinez, 566

U.S. at 16, the Martinez cause-and-prejudice exception does not apply to excuse the

procedural default of Claims 2 and 3.

As for the actual innocence exception, Petitioner has not presented any new,

reliable evidence of factual innocence, nor does the record reflect any basis for the Court

to apply that exception. Thus, Claims 2 and 3 are subject to dismissal.

CONCLUSION

For the foregoing reasons, Claim 1 is not cognizable in this federal habeas

proceeding, and Petitioner’s remaining claims are procedurally defaulted. Therefore, the

Court must dismiss the Petition.

ORDER

IT IS ORDERED:

1.

Respondent’s Motion for Extension of Time (Dkt. 11) is GRANTED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 13) is GRANTED, and

the Petition is DISMISSED with prejudice.

3.

The Court does not find its resolution of this habeas matter to be reasonably

debatable, and a certificate of appealability will not issue. See 28 U.S.C.

§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a

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timely notice of appeal with the Clerk of Court. Petitioner may seek a

certificate of appealability from the Ninth Circuit by filing a request in that

court.

DATED: January 10, 2018

Honorable Candy W. Dale

United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 11

Additional material

from this filing is

available in the

Clerk's Office.