Hoffman v. Arave

• Decision Date: 03 January 2001
• Docket Number: No. 99-99002,99-99002
• Citation: 236 F.3d 523
• Parties: (9th Cir. 2001) MAXWELL HOFFMAN, Petitioner-Appellant, v. A.J. ARAVE, Warden, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

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236 F.3d 523 (9th Cir. 2001) MAXWELL HOFFMAN, Petitioner-Appellant,
v.
A.J. ARAVE, Warden, Respondent-Appellee. No. 99-99002 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 15, 2000
Filed January 3, 2001

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Joan M. Fisher, Federal Defenders of Eastern Washington and Idaho, Moscow, Idaho and Ellison Matthews, Boise, Idaho, for the petitioner-appellant.

L. LaMont Anderson, Deputy Attorney General, Boise, Idaho, for the respondent-appellee.

Appeal from the United States District Court for the District of Idaho Lynn Winmill, District Judge, Presiding. D.C. No.CV-94-00200-S-BLW

Before: Harry Pregerson, William A. Fletcher and Ronald M. Gould, Circuit Judges.

PREGERSON, Circuit Judge:

Maxwell Hoffman ("Hoffman") appeals the district court's dismissal of his petition for a writ of habeas corpus, in which he claims, inter alia, that the district court erred in finding that: (1) Idaho Code 19-2719 was an adequate and independent state law ground to support the state court's judgment that petitioner had defaulted his ineffective assistance of counsel claims; (2) petitioner's due process rights were not violated by the state trial court's refusal to allow petitioner's attorney to be present at the presentence interview conducted by the state probation officer; (3) the "heinous, atrocious and cruel" aggravating factor in Idaho's capital sentencing law, Idaho Code 19-2515(h)(5), was not unconstitutionally vague; and (4) the application of Idaho's capital sentencing scheme did not unconstitutionally deprive petitioner

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of the right to have a jury determine the presence of an aggravating circumstance in light of Apprendi v. New Jersey , 120 S. Ct. 2348 (2000).

This court has jurisdiction to review petitioner's claims under 28 U.S.C. 1291 and 2254. We affirm the district court's ruling that Hoffman's ineffective assistance of counsel claims were procedurally defaulted under Idaho CodeS 192719, but reverse on the question whether the Idaho statute is "adequate" to preclude federal review of the underlying constitutional claim. Hoffman v. Arave, 973 F. Supp. 1152, 116668 (D. Idaho 1997). We also reverse the district court's finding that Hoffman's Sixth Amendment right to counsel was not violated by the Idaho trial court's refusal to allow petitioner's attorney to be present at the presentence interview conducted by a state probation official. Hoffman v. Arave , 73 F. Supp. 2d 1192, 1203-07 (D. Idaho 1998).¹ With respect to petitioner's remaining claims, we uphold the findings of the district court.² Accordingly, we affirm in part, reverse in part, and remand for an evidentiary hearing on petitioner's ineffective assistance of counsel claims.

I.

Facts and Procedural History

On March 16, 1989, an Idaho jury found Hoffman guilty of first degree murder for killing Denise Williams, a police informant. At trial, Hoffman, who is indigent, was represented by county public defenders William Wellman ("Wellman") and Charles Coulter ("Coulter"). Following Hoffman's conviction, the state sought the death penalty. Pursuant to Idaho law, the state trial court conducted a separate sentencing proceeding, which included a presentence interview of the defendant by a probation officer, the submission of a presentence report written by the probation officer, and a sentencing hearing held by the court in which aggravating and mitigating evidence was presented by the state and defense counsel. After considering the testimony at trial and sentencing, and the presentence report submitted by the probation officer, the trial court imposed the death penalty.

Before sentencing proceedings began, Hoffman's trial counsel filed a motion requesting the right to have counsel present at the presentence interview with the probation officer, which the court denied. Trial counsel also filed a motion pursuant to Idaho Code 19-2522(3)(a-f) and (5) requesting that the court order a psychiatrist or psychologist to examine "the mental condition of the defendant" and submit a written report to defense counsel. The court granted the motion and appointed psychologist David Sanford, Ph.D., to prepare a written evaluation of Hoffman and submit it to defense counsel.³ Dr. Sanford prepared a report, in which he concluded that offman was "illiterate," and "shows a rather consistent picture of brain damage to the left hemisphere" that created

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"significant articulation problems" and an "overall borderline intellectual capability." Hoffman's attorneys elected not to present Sanford's report at sentencing or "make any use of the psychological findings."⁴ State v. Hoffman, 851 P.2d 934, 937 (Idaho 1993), cert. denied, Hoffman v. Idaho, 511 U.S. 1012 (1994).

On June 9, 1989, the court held a sentencing hearing to determine whether Hoffman would receive life in prison or the death penalty. Hoffman testified that he had spent most of his childhood as a ward of the state and some of his adult life in state penal institutions where he was incarcerated for burglary and robbery. He testified that his schooling had been sporadic, that he had never learned to read, and that he had chronic problems with alcohol and drugs.

On June 13, 1989, the trial court, after finding that the aggravating factors outweighed the mitigating evidence, sentenced Hoffman to death. In a written decision, the court found that two statutory aggravating factors, the killing of a government witness and the particularly "heinous, atrocious and cruel" nature of the murder, outweighed the mitigating factors, which included Hoffman's drug addiction, educational deficiencies, and disadvantaged social background.

Hoffman's petition for state post-conviction relief was timely filed on July 25, 1989, by trial counsel Wellman and Coulter, who continued to provide legal representation. Counsel requested an additional psychological evaluation, which was denied. The state court held an evidentiary hearing on the petition, which alleged multiple claims of error at trial and sentencing, and denied relief on December 13, 1989.

Wellman and Coulter appealed to the Idaho Supreme Court. The appeal consolidated the direct appeal and postconviction claims of error as required by Idaho CodeS 192719. No issues regarding ineffective assistance of counsel were raised in the appeal. On January 29, 1993, the Idaho Supreme Court affirmed Hoffman's death sentence and the state trial court's denial of his post-conviction petition. See Hoffman, 851 P.2d at 944, cert. denied, Hoffman v. Idaho, 511 U.S. 1012 (1994).

Hoffman, represented by newly appointed counsel, Charles Peterson ("Peterson") and Ellison Matthews ("Matthews"), filed a second petition for post-conviction relief in the state district court on July 7, 1995. The petition alleged fourteen grounds for relief, including three claims asserting that petitioner had been denied the effective assistance of counsel at trial, sentencing, and on direct appeal. The state moved to dismiss the petition, asserting that the fourteen claims were procedurally defaulted because Idaho Code 19-2719 mandates the filing of all post-conviction claims within forty-two days of the entry of judgment. The state district court denied relief on May 20, 1996.

Hoffman's attorneys appealed the dismissal of the second petition to the Idaho Supreme Court. The state filed a motion to dismiss, in which it renewed its argument that the claims were procedurally defaulted. On December 6, 1996, the Idaho Supreme Court issued a brief, unexplained ruling granting thestate's motion. See Hoffman, 973 F. Supp. at 1164.

On April 2, 1996, Hoffman's counsel filed a federal habeas petition in the United States District Court for the District of Idaho asserting, inter alia, that: Idaho Code 19-2719 deprived petitioner of his

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constitutional right to due process and equal protection; counsel's performance at trial, sentencing, and on appeal was deficient and prejudicial in violation of petitioner's Sixth Amendments rights; petitioner's ineffective assistance of counsel claims were not procedurally barred; the trial court's refusal to allow petitioner to have counsel present for the presentence interview conducted by the probation officer violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights; and the "heinous, atrocious and cruel" aggravating factor listed under Idaho Code 192515(h)(5) was unconstitutionally vague. See Hoffman, 973 F. Supp. at 1152.

The District Court of Idaho issued two opinions concerning Hoffman's habeas petition. In the first opinion, issued on June 13, 1997, the court dismissed with prejudice some of Hoffman's claims for relief, including his ineffective assistance of counsel claims, based upon a finding of procedural default.⁵

On December 28, 1998, the district court issued its second opinion concerning Hoffman's habeas petition, which addressed the merits of the remaining claims.⁶ See id. The court rejected all of the surviving claims in the petition. See id. On January 20, 1999, Hoffman's counsel filed a notice of appeal of the district court's denial of the petition.

The district court's decision to grant or deny aS 2254 habeas petition is reviewed de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). Dismissal based on state procedural default presents issues of law reviewed de novo. Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997).

II.

Ineffective Assistance of Counsel Claims

The right to the effective assistance of counsel is "fundamental and essential to fair trials." Gideon v. Wainwright, 372 U.S. 335, 344 (1963); see also Evitts v. Lucey , 469 U.S. 387, 394-96 (1985). Because this right "lies at the very foundation of the adversary system of criminal justice," habeas courts must be "particularly vigilant in scrutinizing the adequacy of state rules of procedural default which have the effect of...