Rhoades v. Henry

• Decision Date: 08 March 2010
• Docket Number: No. 07-99023.,07-99023.
• Citation: 598 F.3d 495
• Parties: Paul Ezra RHOADES, Petitioner-Appellant v. Jeff HENRY, of the IMSI, Department of Corrections State of Idaho,* Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

598 F.3d 495

Paul Ezra RHOADES, Petitioner-Appellant v. Jeff HENRY, of the IMSI, Department of Corrections State of Idaho, ^* Respondent-Appellee.

No. 07-99023.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 3, 2010.

Filed March 8, 2010.

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Oliver W. Loewy, Federal Defender Services of Idaho, Moscow, ID; Dennis A Benjamin, Nevin, Benjamin, McKay &amp Bartlett, Boise, ID, for the petitioner-appellant.

L. LaMont Anderson, Deputy Attorney General, Boise, ID, for the respondentappellee.

Appeal from the United States District Court for the District of Idaho, Edward J Lodge, District Judge, Presiding. D.C. No. CV-93-00156-S-EJL.

Before: PAMELA ANN RYMER RONALD M. GOULD and JAY S. BYBEE, Circuit Judges.

RYMER, Circuit Judge:

Paul Ezra Rhoades appeals the district court's denial of his petition for writ of habeas corpus. He was convicted in Idaho state court of the 1987 first degree murder, first degree kidnapping, robbery rape, and infamous crime against nature of Susan Michelbacher.¹ The trial court sentenced him to death on his convictions for first degree murder and first degree kidnapping. The Idaho Supreme Court upheld his conviction, sentence, and denial of post-conviction relief. State v. Rhoades (Michelbacher), 121 Idaho 63, 822 P.2d 960 (Idaho 1991). We affirm denial of relief on the conviction, and defer submission on sentencing issues.²

I

Susan Michelbacher was a junior high school teacher who didn't feel well on the morning of March 19, 1987. Around 6:30 a.m. she decided to go to work to make lesson plans for a substitute so she could return home and rest. She drove her 1984 Ford Econo Line van. She wasn't home when her husband came back at noon, nor was she there when he returned at 5:30. He called the school and found out that Michelbacher had been in earlier to do her lesson plan but had not been at school during the day.

Meanwhile, around 7:30 a.m., Valerie Stapf nearly had a head-on collision in a parking lot with someone driving a van that looked exactly like Michelbaeher's. Stapf identified Rhoades as the passenger. She thought the driver was similar in appearance to Michelbacher, but could not make a positive identification. After a short standoff, the van backed up and went toward the First Interstate Bank.

Michelbacher pulled her van to the drive-in window just as the bank opened at 8:30 a.m. She gave the teller a check for $1000, which the teller cashed. Ten to fifteen minutes later, Michelbacher cashed another $1000 check at another of the bank's branches.

Around 10:00 a.m., Susan Browning saw Michelbaeher's van enter her driveway and stall while backing out. Browning identified Rhoades as the driver, Harry Burke as one passenger, and Rhoades's sister as another. Michelbaeher's body was subsequently discovered less than a mile away.

Later in the day, two other people saw Rhoades, or someone who looked like Rhoades, in Michelbaeher's van. The van was found the next day in the parking lot of the bank where the first $1000 check was cashed. It had fresh scratches, a smashed tailpipe, and 200 more miles on it than when Michelbacher left home the morning before.

Michelbaeher's body was found on March 21 in a remote, rural area. An autopsy revealed that she had been raped, she had been shot nine times—once while standing and the remaining times while lying down—and her attacker had ejaculated into her mouth when she was either almost dead or already dead. Rhoades could not be excluded as the semen donor, nor could he be ruled out as the source of head hair retrieved from Michelbaeher's body and van or of pubic hair retrieved from her body.

The next day Rhoades showed Vicky Miller a roll of cash and told her that "he had come into some money" and was going to the Jackpot Casino. Later that evening, Rhoades was seen in a Ford LTD with a large amount of cash at a gas station between Idaho Falls and the Jackpot Casino. He told the cashier he was going to Nevada.

On March 24, a Nevada state trooper noticed that a green Ford had been wrecked in the median of the highway about twenty miles outside Wells, Nevada. A truck driver saw Rhoades get out of the car and fumble with something brown. When the trooper was able to respond twenty minutes later, he ran the plates and found out that the car had been reported stolen by Pauline Rhoades, Rhoades's mother. The trooper also found a.38 caliber revolver lying outside the driver's door. The gun was loaded with special lead bullets. Ballistics testing would show that this gun was used to fire the bullets that killed Michelbacher. Rhoades's fingerprints were also lifted from the LTD.

Wells police officers learned that Rhoades was at the 4 Way Casino about 9:00 p.m. the next evening. Rhoades was arrested at a blackjack table, handcuffed, and placed across the trunk of the policecar. While being arrested, Rhoades said he "wanted the money that was on the game."

Meanwhile, Idaho police officers (who had gone to Nevada after being alerted to discovery of the stolen car belonging to Rhoades's mother) were contacted and they, too, went to the casino. As the Idaho team approached, Rhoades, who knew one of them, spontaneously said "I did it." Immediately after this, Officer Victor Rodriguez, from Idaho, advised Rhoades of his Miranda rights.³ Rhoades was asked if he understood those rights and said something to the effect of "I do, yes." Detective Dennis Shaw, also from Idaho, searched Rhoades and found a ten dollar bill, a one dollar bill, and a onehundred dollar bill. To test Rhoades's awareness, Shaw told Rhoades he had found three dollars. Rhoades responded: "There'd better be a hundred and eleven dollars there."

Rhoades was then taken to the Wells Highway Patrol substation. While taking photographs at the station, Shaw said something like "If I arrested you earlier, maybe the victim would be alive today." Rhoades responded: "I did it." Shaw followed that statement by saying "the lady in Idaho Falls, " to which Rhoades again replied, "I did it."⁴

II

The state charged Rhoades with first degree murder, first degree kidnapping, robbery, rape, and infamous crime against nature. The information also charged Rhoades with the first degree murder of Nolan Haddon, but the Haddon charges were later severed. Rhoades moved to suppress his "I did it" statements. After an evidentiary hearing, the trial court denied the motion.

The jury found Rhoades guilty on all counts. The trial court then held a sentencing hearing. It concluded that the mitigating factors did not outweigh any one of the statutory aggravating circumstances that it found. Accordingly, the judge sentenced Rhoades to death for first degree murder and for first degree kidnapping. It imposed fixed life prison sentences for the remaining crimes.

Rhoades filed a petition for post-conviction relief. The trial court held an evidentiary hearing, after which it denied relief. The Idaho Supreme Court affirmed Rhoades's conviction, sentence, and denial of post-conviction relief on February 13, 1991. The Supreme Court denied Rhoades's petition for a writ of certiorari.

Rhoades filed his initial federal petition on February 21, 1994. As this was before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), this appeal (except for procedural requirements for seeking review) is governed by pre-AEDPA law. Sims v. Broum, 425 F.3d 560, 562 (9th Cir.2005).

The district court allowed Rhoades leave to develop the facts by taking the deposition of several witnesses, including his trial counsel, John Radin and Stephen Hart. Both attorneys also submitted affidavitson their handling of suppression issues. The court expanded the existing record to include the deposition transcripts and affidavits pursuant to Rule 7 of the Rules Governing Section 2254 Cases. After receiving supplemental briefing that included a factual proffer, the court denied an evidentiary hearing on Rhoades's claims for ineffective assistance of counsel, ⁵ and held that no other claims required one. In particular, the district court held that the state court had afforded Rhoades a full and fair hearing on his claims that the state had withheld material exculpatory information with respect to a third-party confession, and that his "I did it" statements should have been suppressed. The district court then denied those claims it had not previously dismissed, as well as Rhoades's motion to alter or amend and to reconsider the procedural default order.

Rhoades timely appealed issues on which he received a certificate of appealability, and one on which he did not.

III

We review de novo the district court's decision to grant or deny a petition for writ of habeas corpus. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.1996). "Ineffective assistance of counsel claims are mixed questions of law and fact which we review de novo." Beardslee v. Woodford, 358 F.3d 560, 569 (9th Cir. 2004).

"To the extent it is necessary to review findings of fact made in the district court, the clearly erroneous standard applies." Silva v. Woodford, 279 F.3d 825, 835(9th Cir.2002). This clear error review is "significantly deferential" and the court "must accept the district court's factual findings absent a 'definite and firm conviction that a mistake has been committed.'" Id. (citation omitted). Further, "[although less deference to state court factual findings is required under the pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness unless they are 'not fairly supported by the record.'" Id. (citations omitted).

"A district court['s] denial of an evidentiary hearing is reviewed for abuse of discretion." Beardslee, 358 F.3d at 573.

IV

Rhoades argues that the state violated his right to due process by withholding the fact that he had invoked his right to silence before being interrogated at the station and making the second "I did it" statement. He also...