Paradis v. Arave

• Citation: 667 F. Supp. 1361
• Decision Date: 24 August 1987
• Docket Number: Civ. No. 86-1188.
• Parties: Donald M. PARADIS, Petitioner, v. A.J. ARAVE, Warden, Idaho State Correction Institution, and Al Murphy, Director, Idaho State Board of Corrections, Respondents.
• Court: U.S. District Court — District of Idaho

667 F. Supp. 1361

Donald M. PARADIS, Petitioner, v. A.J. ARAVE, Warden, Idaho State Correction Institution, and Al Murphy, Director, Idaho State Board of Corrections, Respondents.

Civ. No. 86-1188.

United States District Court, D. Idaho.

July 30, 1987.

As Corrected August 24, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William L. Mauk, Skinner, Fawcett & Mauk, Bruce S. Bistline, Boise, Idaho, Edwin S. Matthews, Jr., Charles Wolfson, Coudert Brothers, New York City, for petitioner.

Jim Jones, Atty. Gen., State of Idaho, Lynn E. Thomas, Sol. Gen., Office of Atty. Gen., State of Idaho, Boise, Idaho, for respondents.

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

RYAN, District Judge.

I. INTRODUCTION

This action is a petition for writ of habeas corpus filed June 9, 1986, pursuant to 28 U.S.C. § 2254. Judgment of conviction was entered after jury trial by the District Court of the First Judicial District of the State of Idaho, in and for the County of Kootenai, Coeur d'Alene, Idaho, on December 10, 1981. Petitioner was sentenced to death on April 7, 1982.

On June 10, 1986, the court entered a Memorandum Opinion and Order finding that summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts was not appropriate. The court analyzed the law relative to petitioner's application for stay of execution of sentence of death and determined that a stay of execution should be granted. The court entered an order for stay of execution of death sentence pursuant to 28 U.S.C. § 2251. The respondents were ordered to file an answer to the petition.

On July 2, 1986, respondents filed their answer, together with transcripts listed as Exhibits A through H (hereinafter "Tr.A-H"). Additionally, affidavits designated as Exhibits I through N (hereinafter "Exh. I-N") were provided to the court.

Until November 10, 1986, petitioner was represented by Edwin S. Matthews, Jr. On November 10, 1986, upon motion by petitioner, the court granted leave to proceed in forma pauperis and appointed local attorneys William L. Mauk and Bruce S. Bistline as counsel for the petitioner pursuant to 18 U.S.C. § 3006A. It was understood that Mauk would be involved primarily at the hearing stage of the proceedings. Bistline provided logistical and procedural assistance. Bistline conducted the discovery allowed by the court. Matthews continued to represent petitioner primarily in legal research and brief preparation. The above-mentioned counsel represented petitioner through the discovery, hearing and post-hearing briefing phases of this proceeding.

On November 10, 1986, the court ordered petitioner to file on or before December 19, 1986, an initial brief relative to the issues raised in the petition, and respondent to file a responsive brief on or before January 13, 1987. Upon motion by petitioner, the court ordered on January 8, 1987, that petitioner's initial brief be filed on or before February 13, 1987, and respondents' brief on or before March 13, 1987. The court informed the parties that any evidentiary hearing would be conducted by the court beginning April 6, 1987.

A primary purpose for ordering initial briefing was to allow the parties the opportunity to address the issue of the right to an evidentiary hearing and the scope of such hearing given the issues raised by the petition. Secondarily, the initial briefing provided the court with an outline of the law relative to the issues which petitioner sought to address by an evidentiary hearing. The parties filed simultaneous briefs on March 6, 1987, and simultaneous reply briefs on March 20, 1987. On March 20, 1987, the court granted petitioner's motion regarding the evidentiary hearing. Petitioner had requested the opportunity to submit evidence on five issues raised in the petition. The court reiterated that the hearing would be conducted beginning on April 6, 1987, and that three days had been set aside from the court's calendar for the hearing.

It should be noted that this court addressed numerous requests for discovery and appointment of expert witnesses, which were granted in part and denied in part. The record adequately reflects the process of discovery in this action. The court attempted to strike a balance between allowing discovery necessary for presentation of the issues raised in the petition and prohibiting discovery which could serve little purpose other than in retrying the matter. The court granted petitioner the right to have various witnesses subpoenaed and paid their witness fees at government expense and denied some such requests. Numerous depositions were conducted, documents produced and witnesses made available. The court also ordered the testing of various items of evidence which were related to the underlying crime.

The court conducted an evidentiary hearing in this matter on the 6th, 7th, 8th, 13th, 14th and 15th of April, 1987. The court recognized the urgency and importance of this matter and cleared the court's calendar to provide counsel every opportunity to present all of the evidence reasonably necessary. The matter was taken under advisement pending submission of post-hearing memoranda. The record before this court is complete and the court will herein enter the court's findings of fact, conclusions of law and final disposition of the petition for writ of habeas corpus.

II. PROCEDURAL DEFAULT

The State of Idaho has claimed that the issues raised in the petition for writ of habeas corpus regarding the trial court's denial of petitioner's motion for change of venue and the conduct and statements made by the prosecutor have been procedurally defaulted and should not be considered by this court. The State has also asserted that petitioner's claim of denial of an impartial sentencing authority has been procedurally defaulted. However, while perhaps the issue was not expressly raised in the direct appeal by Paradis, the question is necessarily reviewed pursuant to the Idaho Supreme Court's duty found in Idaho Code § 19-2827. The Idaho Supreme Court engaged in an independent review of this case pursuant to Idaho Code § 19-2827 in State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), rehr'g denied, February 14, 1984. This court considers the issue of the impartiality of the sentencing authority to have been decided on direct appeal to the Idaho Supreme Court and the issue will be reexamined by this court below.

In Paradis v. State of Idaho, 110 Idaho 534, 716 P.2d 1306 (1986), rehr'g denied April 30, 1986, the court found that petitioner's claims regarding change of venue and prosecutorial misconduct had been procedurally defaulted and, therefore, rejected as a matter of law. At that time the matter was before the Idaho Supreme Court for appellate review of the decision on the petition for post-conviction relief. The Idaho Supreme Court correctly cited the rule in Idaho that issues which could have and should have been raised on direct appeal will not be allowed to be raised in a post-conviction proceeding. The reason for the rule is that post-conviction proceedings cannot be used as a substitute for appeal. Id. 110 Idaho at 545, 716 P.2d 1306; Watkins v. State, 101 Idaho 758, 620 P.2d 792 (1980).

Petitioner challenges the finding of procedural default by asserting that Idaho has established a recognized exception to the procedural rules for the consideration of constitutional claims in capital cases, citing State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). Petitioner avers that the existence of such an exception in capital cases eviscerates the rule with respect to the request for relief in this federal action. However, the Osborn court was dealing with its requirements under Idaho Code § 19-2827 to review the whole record as it pertains to the death sentence. In a sense, Idaho Code § 19-2827 as construed by the Osborn court does create a limited exception to the procedural default rule with respect only to the procedures employed in sentencing and the ultimate sentence of death. In other words, there can be no procedural default of issues arising from the sentence of death by a failure to interpose objection at the trial level.

The Idaho Supreme Court has the affirmative duty to review the entire record regarding sentencing for both asserted and unasserted errors. In this case, the Idaho Supreme Court did review the record regarding sentencing pursuant to Idaho Code § 19-2827 and any issue arising from sentencing must therefore be considered to have been decided upon direct appeal by the Idaho Supreme Court. The rule announced in the Osborn case does not extend to every issue which may or may not arise as to pretrial and trial proceedings, but only applies to the sentencing procedure and death sentence. There is no general exception to the procedural default rule in capital cases.

Petitioner's second claim is that the procedural default rule has been irregularly and sporadically applied, and therefore, the rule should not preclude federal review. The court has reviewed the cases cited by the petitioner for this proposition as well as other case law from the State of Idaho and has determined that petitioner has failed to show that the rule should not be applied in this federal review because of some irregular and sporadic application by the state courts.

Petitioner's next challenge to the procedural default is that "Idaho law provides that claims are waived for purposes of post-conviction relief only if they were `knowingly, voluntarily and intelligently waived.' Idaho Code § 19-4908." Petitioner's Memorandum Response to Respondent's Memorandum Dated March 6, 1987, filed March 20, 1987, at 18-19 (emphasis added). Petitioner misstates Idaho Code § 19-4908 (1979) which states:

Waiver of or failure to assert claims. — All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground

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