State v. Darryl Nieves; State v. Michael Cifelli

                 UNITED STATES DISTRICT COURT                            
                   FOR THE DISTRICT OF IDAHO                             


STEVEN L. HARRIS,                                                        

               Petitioner,       Case No. 1:24-cv-00433-REP              

vs.                              INITIAL REVIEW ORDER                    

RUSSELS ROSS, Warden,                                                    

               Respondent.                                               


    Petitioner Steven L. Harris (Petitioner) has filed a Petition for Writ of Habeas 
Corpus challenging his state court conviction. Dkt. 3. Federal habeas corpus relief is 
available to petitioners who are held in custody under a state court judgment that violates 
the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). All 
named parties have consented to the jurisdiction of a United States Magistrate Judge to 
enter final orders in this case. Dkt. 7. See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.   
    The Court is required to review each newly-filed habeas corpus petition to 
determine whether it should be served upon the respondent, amended, or summarily 
dismissed. See 28 U.S.C. § 2243. If “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,” the 
petition will be summarily dismissed. Rule 4 of the Rules Governing Section 2254 Cases. 

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    Having reviewed the Petition, the Court concludes that Petitioner may proceed to 
the next stage of litigation in this matter.                              
                     REVIEW OF PETITION                                  

 1.  Background                                                          
    Petitioner was convicted of one count of Driving under the Influence (DUI) in the 
Twin Falls County District Court. On December 5, 2022, he received a ten-year sentence 
and judgment was entered. Dkt. 3 at 1. It does not appear that Petitioner pursued a direct 
appeal, but he filed a post-conviction action. Id. at 2-3. Petitioner’s appeal of the post-

conviction decision was dismissed as untimely on June 28, 2024. See Dkt. 3-2 (Order 
Conditionally Dismissing Appeal).                                         
 2.  Discussion                                                          
      A. Special Treatment of Fourth Amendment Claims                    
    Petitioner’s first claim is an alleged Fourth Amendment violation, that he was 

stopped without probable cause. Dkt. 3 at 4. The stop formed the basis for his arrest and 
eventual DUI conviction.                                                  
    Fourth Amendment claims are treated in a unique manner in federal habeas corpus 
actions. When a state has provided a defendant with an opportunity for full and fair 
litigation of a Fourth Amendment claim, it may not be relitigated by a federal district 

court in a habeas corpus action, “regardless of its view of the correctness of the state 
decision.” Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977) (relying on Stone v. Powell, 

INITIAL REVIEW ORDER - 2                                                  
428 U.S. 465, 481–82 (1976) (Fourth Amendment issues are not cognizable on federal 
habeas review)); Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986).     
    Thus, the threshold issue for a Fourth Amendment claim is whether the petitioner 

had an initial opportunity for a fair hearing in state court. See Caldwell, 781 F.2d at 715. 
The narrow question is “whether petitioner had the opportunity to litigate his claim, not 
whether he did in fact do so or even whether the claim was correctly decided.” Ortiz-
Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also Gordon v. Duran, 895 
F.2d 610, 613-14 (9th Cir. 1990). The petitioner bears the burden of establishing that the 

state courts did not consider the Fourth Amendment claim fully and fairly. Mack, 564 
F.2d at 901.                                                              
    The United States Supreme Court has not announced a particular test for analyzing 
whether a state provided a defendant with an opportunity for full and fair litigation of a 
Fourth Amendment claim. To aid in determination of this question, federal district courts 

in the Ninth Circuit review transcripts and briefing from the state trial and appellate 
courts. See Terrovona v. Kincheloe, 912 F.2d 1176, 1178-1179 (9th Cir. 1990) (citing 
Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir. 1981)), cert. denied, 499 U.S. 979 (1991). 
    It is unclear whether the Fourth Amendment claim was properly presented to the 
Idaho Supreme Court or whether it is procedurally defaulted. The procedural default 

standards of law are discussed below.                                     


INITIAL REVIEW ORDER - 3                                                  
    If Respondent raises procedural default, Petitioner may proceed to that stage; if 
not, Petitioner may proceed to a showing that the state courts did not consider the Fourth 

Amendment claim fully and fairly. Often both of these questions are litigated as threshold 
issues in a habeas corpus action.                                         
      B. Ineffective Assistance of Counsel Claims                        
    Petitioner’s second claim is a Sixth Amendment ineffective assistance of counsel 
claim. He asserts his defense counsel failed to file a motion to suppress evidence and was 

untruthful to Petitioner about the basis for the claim. Dkt. 3 at 5. Petitioner’s third claim 
is that his defense counsel failed to file a Rule 35 motion for reduction of sentence. 
Petitioner attempted to file a pro se Rule 35 motion, but the state court rejected it because 
that court has a policy of not ruling on pro se motions when a litigant is represented by 
counsel. See Dkt. 3-2 (letter from Twin Falls County Clerk of the District Court). 

    These two Sixth Amendment claims may be procedurally defaulted if they were 
not properly presented to the Idaho Supreme Court.                        
      C. Judicial Misconduct Claim                                       
    Petitioner’s fourth claim is that Idaho District Court Judge Benjamin J. Cluff 
denied him adequate due process under the Fourteenth Amendment when the judge (a) 

refused to appoint a conflict attorney for Petitioner, (b) construed Petitioner’s Rule 35 
motion as a direct appeal, (c) refused to appoint a lawyer for Petitioner on his post-

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conviction appeal, and (d) refused to provide Petitioner with a transcript at no cost. Dkt. 3 
at 7.                                                                     
    Subclaims 4(a) and (d) are cognizable federal claims, but may be procedurally 

defaulted. Petitioner may proceed to that stage.                          
    Subclaims 4(b) and (c) are not cognizable federal claims, because they are 
questions of state law. As to Claim 4(b), that a Rule 35 Motion was construed as a direct 
appeal, federal habeas corpus relief generally is “unavailable for alleged error in the 
interpretation or application of state law.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th 

Cir. 1985) (citations omitted), cert. denied, 478 U.S. 1021 (1986); Lewis v. Jeffers, 497 
U.S. 764, 780 (1990).                                                     
    As to Claim 4(c), that Petitioner was not appointed a post-conviction appellate 
attorney, habeas corpus is not the proper avenue to address errors in a state’s post-
conviction review process. Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989), cert. 

denied, 493 U.S. 1012 (1989); Williams v. Missouri, 640 F.2d 140, 143-44 (8th Cir. 
1981) (“[I]nfirmities in the state’s post conviction remedy procedure cannot serve as a 
basis for setting aside a valid original conviction [citation omitted]. . . . There is no 
federal constitutional requirement that the state provide a means of post-conviction 
review of state convictions.”).                                           

    Plaintiff may proceed on subclaims (a) and (d) to the extent that they are not 
procedurally defaulted.                                                   

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 3.  Conclusion                                                          
    The Court does not have the full record before it to make a determination on the 
procedural matters. The Court will order the Clerk of Court to serve the Petition upon 

Respondent, who will be permitted to file an answer or a pre-answer motion for summary 
dismissal regarding all claims except 4(b) and (c), which are dismissed for failure to state 
a federal claim upon which relief can be granted.                         
 4.  Standards of Law                                                    
    Given Petitioner’s status as a pro se litigant, the Court provides the following 

habeas corpus standards of law that may apply to Petitioner’s case, depending on 
Respondent’s response.                                                    
    A.   Exhaustion of State Court Remedies                              
    Habeas corpus law requires that a petitioner “exhaust” state court remedies before 
pursuing a claim in a federal habeas petition. 28 U.S.C. § 2254(b). To exhaust a claim, a 

habeas petitioner must fairly present it (1) as a federal claim (2) to the highest state court 
(3) for review in the manner prescribed by state law. See O’Sullivan v. Boerckel, 526 U.S. 
838, 845 (1999). Unless a petitioner has exhausted his state court remedies, a federal 
district court cannot grant relief, although it does have the discretion to deny such claims. 
28 U.S.C. § 2254(b)(2).                                                   

    State remedies are considered technically exhausted, but not properly exhausted, if 
a petitioner failed to pursue a federal claim in state court and no state court remedies 

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remain available. O’Sullivan, 526 U.S. at 848. Another kind of improper exhaustion 
occurs when a petitioner pursued a federal claim in state court, but the state court rejected 
the claim on an independent and adequate state law procedural ground. Coleman v. 

Thompson, 501 U.S. 722, 731-732 (1991). Improperly exhausted claims are considered 
“procedurally defaulted.” Id. at 731. A procedurally defaulted claim will not be heard in 
federal court unless the petitioner shows either that there was legitimate cause for the 
default and prejudice resulted from the default, or, alternatively, that the petitioner is 
actually innocent and a miscarriage of justice would occur if the federal claim is not 

heard. Id.                                                                
    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 v. Carrier, 477 U.S. 478, 488 
(1986). To show “prejudice,” a petitioner 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).  
    As to errors of counsel made on post-conviction review that cause the default of 
federal claims, the general rule on procedural default is that any errors of a defense 

attorney during a post-conviction action cannot serve as a basis for cause to excuse a 
petitioner’s procedural default of his claims. See Coleman v. Thompson, 501 U.S. 722, 

INITIAL REVIEW ORDER - 7                                                  
752 (1991). This rule arises from the principle that a petitioner does not have a federal 
constitutional right to effective assistance of counsel during state post-conviction 
proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Bonin v. Vasquez, 999 F.2d 

425, 430 (9th Cir. 1993).                                                 
    The case of Martinez v. Ryan, 566 U.S. 1 (2012), established a limited exception 
to the Coleman rule. In Martinez, the court held that inadequate assistance of counsel “at 
initial-review collateral review proceedings may establish cause for a prisoner’s 
procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Martinez 

Court explained that the limited exception was created “as an equitable matter, that the 
initial-review collateral proceeding, if undertaken without counsel or with ineffective 
counsel, may not have been sufficient to ensure that proper consideration was given to a 
substantial claim.” Id. at 14.                                            
    Admission of new evidence on federal habeas corpus review is a rare exception, 

not the rule, even when attempting to show cause and prejudice. In Shinn v. Ramirez, 596 
U.S. 366 (2022), the United States Supreme Court stated that “there is no point in 
developing a record for cause and prejudice if a federal court cannot later consider that 
evidence on the merits,” because, if a petitioner cannot meet § 2254(e)(2), a “Martinez 
hearing would serve no purpose,” providing “reason to dispense with Martinez hearings 

altogether.” Id. at 389. This same reasoning applies to attempts to introduce evidence 
without an evidentiary hearing.  Id. (citing  Holland v. Jackson, 542 US. 649, 653 (2004) 

INITIAL REVIEW ORDER - 8                                                  
(per curiam)). Ramirez reiterated that post-conviction counsel’s fault in failing to produce 
evidence in state court is attributable to their clients and does not satisfy 28 U.S.C. § 
2254(e)(2). Id. at 383-87 (recognizing that § 2254(e)(2) provides that, “[i]f the applicant 

has failed to develop the factual basis of a claim in State court proceedings, the court 
shall not hold an evidentiary hearing on the claim” unless he meets several stringent 
elements set forth in that section.). The statutory phrase “failed to develop the factual 
basis of a claim” means that “there is lack of diligence, or some greater fault, attributable 
to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). 

“Diligence will require in the usual case that the prisoner, at a minimum, seek an 
evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437; see 
also Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir. 2014) (“A petitioner who has previously 
sought and been denied an evidentiary hearing has not failed to develop the factual basis 
of his claim.”).                                                          

    If a petitioner cannot show cause and prejudice for a procedurally defaulted claim, 
he can still raise the claim if he demonstrates that the court’s failure to consider it will 
result in a “fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494 
(1991). A miscarriage of justice means that a constitutional violation has probably 
resulted in the conviction of someone who is actually innocent. Murray v. Carrier, 477 

U.S. at 496. To show a miscarriage of justice, a petitioner must make a colorable showing 
of factual innocence. Herrera v. Collins, 506 U.S. 390, 404 (1993). That is, he must show 

INITIAL REVIEW ORDER - 9                                                  
that, based on all of the evidence, “it is more likely than not that no reasonable juror 
would have found Petitioner guilty. . . .” Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 
(9th Cir. 2001), citing Schlup v. Delo, 513 U.S. 298, 327 (1995). Types of evidence 

“which may establish factual innocence include credible declarations of guilt by another, 
see Sawyer v. Whitley, 505 U.S. 333, 340 (1992), trustworthy eyewitness accounts, see 
Schlup, 513 U.S. at 331, and exculpatory scientific evidence.” Pitts v. Norris, 85 F.3d 
348, 350-51 (8th Cir. 1996).                                              
    B.   Merits Determination                                            

    For any of Petitioner’s claims that are properly exhausted, he bears the burden of 
showing that the state court judgment either “resulted in a decision that was contrary to, 
or involved an unreasonable application of, clearly established Federal law, as 
determined by the Supreme Court of the United States”; or that it “resulted in a decision 
that was based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.” 28 U.S.C. § 2254(d). Under § 2254(d)(1), 
review is limited to the same record that was before the state court that adjudicated the 
claim on the merits; new factual development generally is not permitted. Cullen v. 
Pinholster, 563 U.S. 170 (2011).                                          
    However, in three circumstances, a federal district court has authority to review a 

claim de novo: (1) If the state appellate court did not decide a properly-asserted federal 
claim, (2) if the state court’s factual findings are unreasonable under § 2254(d)(2), or (3) 

INITIAL REVIEW ORDER - 10                                                 
if an adequate excuse for procedural default exists. In such instances, § 2254(d)(1) does 
not apply. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). The de novo review 
standard permits a district court to draw from both United States Supreme Court and 

circuit precedent, limited 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 § 2254(e)(1) 
to any facts found by the state courts. Pirtle, 313 F.3d at 1167. In other de novo review 
instances, a petitioner may be permitted to bring new evidence in the federal habeas 

corpus proceeding if he or she shows an entitlement to do so under the law. Murray v. 
Schriro, 745 F.3d 984, 1000 (9th Cir. 2014); 28 U.S.C. § 2254(e)(2).      
                            ORDER                                        
    IT IS ORDERED:                                                       
 1.  Petitioner’s In Forma Pauperis Application (Dkt. 1) is GRANTED.     

 2.  The Clerk of Court shall serve (via ECF) a copy of the Petition (Dkt. 3), together 
    with a copy of this Order, on L. LaMont Anderson, on behalf of Respondents, at 
    Mr. Anderson’s registered ECF address.                               
 3.  Petitioner’s request for appointment of counsel (contained in the petition) is 
    DENIED without prejudice, pending the parties’ submissions for the next stage of 

    litigation (procedural issues). The Court will re-evaluate the need for counsel once 
    it has had opportunity to review the state court record.             

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 4.  Claims 4(b) and (c) are DISMISSED for failure to state a federal claim upon 
    which relief can be granted.                                         
 5.  Within 120 days after entry of this Order, Respondent shall have the option of 

    filing 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).             
 6.  Respondents shall file with the responsive pleading or motion, or within a 
    reasonable time period 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 shall 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).                                       
 7.  If the response to the habeas petition is an answer, Petitioner shall prepare a reply 
    (formerly called a traverse), containing a brief rebutting Respondents’ answer and 

    brief, which shall be filed and served within 30 days after service of the answer. 


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    Respondent has the option of filing a sur-reply within 14 days after service of the 
    reply. At that point, the case shall be deemed ready for a final decision.  
 8.  If the response to the habeas petition is a motion, Petitioner’s response to the 

    motion shall be filed and served within 30 days after service of the motion, and 
    Respondents’ reply, if any, shall be filed and served within 14 days thereafter.  
 9.  No party shall file supplemental responses, replies, affidavits or other documents 
    not expressly authorized by the Local Rules without first obtaining leave of Court.  
 10. No discovery shall be undertaken in this matter unless a party obtains prior leave 

    of Court, pursuant to Rule 6 of the Rules Governing Section 2254 Cases.   
 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 shall 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, 


INITIAL REVIEW ORDER - 13                                                 
    and name of the person upon whom service was made, or as specified by the 
    applicable ECF rules.                                                
 13. 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.)                      
 14. 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.                                                     

 15. Petitioner must at all times keep the Court and Respondent advised of any changes 
    in address.                                                          
 16. If Petitioner’s custodian changes at any point during this litigation, counsel for 
    Respondents shall file a Notice of Substitution of Respondent within 30 days of 
    such change, identifying the person who is substituted as Respondent. See Fed. R. 

    Civ. P. 25(d); Rule 2(a) of the Rules Governing Section 2254 Cases.  


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                                         DATED:  November 12, 2024 

                           eel)  ’  Honorable Raymond E. Patricco 
                           \LRICT OF        Chief U.S. Magistrate Judge 

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