Zichko v. State of Idaho

• Decision Date: 04 April 2001
• Docket Number: No. 98-35825,PETITIONER-APPELLANT,RESPONDENTS-APPELLEES,98-35825
• Citation: 247 F.3d 1015
• Parties: (9th Cir. 2001) JOHN J. ZICHKO,, v. STATE OF IDAHO; LARRY WRIGHT, WARDEN; ALAN LANCE,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1015

247 F.3d 1015 (9th Cir. 2001)

JOHN J. ZICHKO, PETITIONER-APPELLANT, v. STATE OF IDAHO; LARRY WRIGHT, WARDEN; ALAN LANCE, RESPONDENTS-APPELLEES.

No. 98-35825

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 4, 2001

Filed May 3, 2001

Amended June 5, 2001

[Copyrighted Material Omitted]

Tom Kummerow, Washington Appellate Project, Seattle, Washington, for the petitioner-appellant.

L. LaMont Anderson, Office of Attorney General, Boise, Idaho, for the respondents-appellees.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding D.C. No. CV 97-00206-EJL

Before: David R. Thompson, Stephen S. Trott, and Richard A. Paez, Circuit Judges.

Paez, Circuit Judge

John J. Zichko appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He is seeking relief from the judgment of conviction entered against him on June 2, 1987, for raping his minor daughter. This appeal raises preliminarily the question of whether a habeas petitioner may challenge an underlying, expired rape conviction while in custody for failing to comply with a state sex offender registration law. We conclude that he may. Zichko alleges substantively in his habeas petition that he was denied effective assistance of counsel when his attorney failed to consult with him about appealing his initial conviction, as required by Roe v. Flores-Ortega , 528 U.S. 470 (2000). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because Zichko procedurally defaulted that claim, we affirm.

BACKGROUND

Zichko pled guilty to the charge of raping his daughter and, on June 2, 1987, the Idaho District Court sentenced him to an indeterminate period of 10 years. He did not appeal.

Zichko filed an application for post-conviction relief in the Idaho District Court on September 18, 1989, raising two grounds for relief: (1) that he received ineffective assistance of counsel; and (2) that his guilty plea was not knowingly, intelligently, and voluntarily given. Specifically, Zichko alleged that his original attorney, William V. Brown, threatened him and his family by advising that he would have to vigorously cross-examine Zichko's daughter, the alleged victim, to provide an adequate defense. Zichko also claimed that his attorney failed to fully advise him of the matters surrounding the charges and failed to raise statute of limitations and alibi defenses. Zichko and his wife testified at an evidentiary hearing before the Idaho District Court. The court denied the petition, making the following factual findings relevant to this appeal: "Zichko requested neither an appeal nor a motion to withdraw his guilty plea[,] [and] [n]o appeal was filed."

Zichko appealed to the Idaho Court of Appeals, which affirmed on procedural grounds the trial court's dismissal of Zichko's petition. The unpublished decision explained that Zichko's brief "does not specify any error with respect either to the sufficiency of the evidence to support the factual findings made by the district court or the conclusions of law applied by the court to the facts found," as required by Idaho statutory and case law. Zichko did not appeal to the Idaho Supreme Court.

On March 28, 1996, Zichko wrote a letter to the Clerk of the Idaho Supreme Court inquiring about the status of his appeal in the intermediate appellate court. The Clerk responded that the Court of Appeals had issued its decision on February 21, 1996, and that the time for filing a petition of review in the Supreme Court had expired. Zichko proceeded to file a series of motions, not relevant to this appeal, in the state courts.

Meanwhile, on May 8, 1997, Zichko filed the instant pro se petition for a writ of habeas corpus in federal district court alleging the following grounds: (1) William V. Brown's threats to Zichko and his family to coerce Zichko to plead guilty rendered Brown's representation ineffective; (2) Brown had a conflict of interest because he had previously represented a white supremacist and had ties to the tourist industry in Kootenai County; (3) Idaho District Court judge James Judd had a conflict of interest because he had ties to casino gambling and the dog track in Post Falls, which Zichko opposed; and (4) Zichko was deprived of a preliminary hearing on a superseding charge.

The district court granted the state's motion to dismiss the petition on July 16, 1998. Of relevance for this appeal is Zichko's first ground for relief, ineffective assistance of counsel. The district court held that Zichko had procedurally defaulted the ineffective assistance of counsel claim by failing to present it to the Idaho Supreme Court. The court then held that Zichko had failed to show the requisite "cause and prejudice" necessary to overcome the procedural default. In October 1998, the district court denied Zichko's request for a certificate of appealability ("COA").

On January 25, 1999, however, we granted Zichko a COA on a single issue: whether remand is necessary for the district court to determine whether Zichko consented to his trial counsel's failure to file a notice of appeal from the judgment of a conviction, as required by Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992), and United States v. Stearns, 68 F.3d 328 (9th Cir. 1995). Zichko now relies on the Supreme Court's more recent decision in Flores-Ortega, which abrogated Lozada and Stearns and limited trial counsel's duty in this regard.

STANDARD OF REVIEW

We review a district court's decision dismissing a 28 U.S.C. § 2254 habeas petition de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). But under the AntiTerrorism and Effective Death Penalty Act of 1996, we may grant habeas relief to a person in state custody only if the claimed constitutional error "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." 28 U.S.C. § 2254(d)(1).

The district court's factual findings are reviewed for clear error. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). The state court's determination of the facts is presumed to be correct. 28 U.S.C. § 2254(e)(1).

DISCUSSION

A. JURISDICTION

The first issue we confront is whether the district court had jurisdiction over Zichko's petition. For a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be "in custody." See, e.g., Brock v. Weston, 31 F.3d 887, 888 (9th Cir. 1994). "The general rule concerning mootness has long been that a petition for habeas corpus becomes moot when a prisoner completes his sentence before the court has addressed the merits of his petition." Larche v. Simons, 53 F.3d 1068, 1069 (9th Cir. 1995) (citing Robbins v. Christianson, 904 F.2d 492, 494 (9th Cir. 1990)).

In this case, Zichko was released from prison on his original rape conviction in March 1994. His original 10-year sentence would have ended on June 1, 1997, less than a month before he filed his habeas petition in district court. The district court never addressed the merits of Zichko's petition; instead, it dismissed the petition on procedural grounds on July 16, 1998, more than a year after the sentence would have been completed had he been incarcerated for the full 10 years.

Zichko was, however, incarcerated for failing to register as a sex offender as required by Idaho law, Idaho Code§§ 18-8301 - 18-8326, at the time he filed his habeas petition and at the time it was dismissed by the district court. Several times, we have held that merely being subject to a sex offender registry requirement does not satisfy the"in custody" requirement after the original rape conviction has expired. See, e.g., McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999); Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998). In none of our previous cases, however, was the petitioner actually incarcerated for failing to register. In contrast, in this case of first impression, Zichko was incarcerated at all relevant times.

"It is well settled that a habeas corpus petitioner meets the statutory `in custody' requirements when, at the time he files the petition[ ] . . . he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks." Carter v. Procunier , 755 F.2d 1126, 1129 (5th Cir. 1985). Zichko was subject to Idaho's registration requirement only because of his initial rape conviction. We now hold that a habeas petitioner is "in custody" for the purposes of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction "is a necessary predicate" to the failure to register charge. Brock, 31 F.3d at 890 (holding that the habeas petitioner could challenge an earlier, expired conviction while involuntarily committed for treatment as a violent sexual predator).

The Supreme Court's recent decision in Lackawanna County Dist. Atty. v. Coss, 121 S.Ct. 1567 (2001), is not to the contrary. There, the Supreme Court held that "if a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant . . . may not collaterally attack his prior conviction through" a habeas petition related to his current conviction. Id. at 1573; see also Daniels v. United States, 121 S.Ct. 1578, 1583 (2001) (same). But before reaching that holding, the Court also held that the petitioner was "in custody" for jurisdictional purposes because he alleged that the earlier, unconstitutional conviction had enhanced his later sentence. Lackawanna County, 121 S.Ct. at 1573. Similarly, here, Zichko's current conviction for...