Smith v. Idaho

• Decision Date: 07 September 2004
• Docket Number: No. 02-36043.,02-36043.
• Citation: 383 F.3d 934
• Parties: Ramon L. SMITH, Petitioner-Appellant, v. State of IDAHO, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 934

Ramon L. SMITH, Petitioner-Appellant, v. State of IDAHO, Respondent-Appellee.

No. 02-36043.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2004.

Filed September 7, 2004.

Phillip H. Gordon, Gordon Law Offices, Boise, ID, for the petitioner-appellant.

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

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-01-00001-EJL.

Before: B. FLETCHER, HAMILTON,^* and BERZON, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Ramon Smith ("Smith") appeals the district court's dismissal of his petition for a writ of habeas corpus. The district court held that Smith's claims were procedurally barred because Smith had failed to comply with state procedural rules during his state post-conviction proceedings. The district court also held that Smith had made no showing of cause and prejudice to excuse his procedural default. Smith filed a timely appeal. We conclude that the district court lacked personal jurisdiction over the petition, but that the State of Idaho has waived any jurisdictional defects. On the merits, we conclude that Smith has not shown cause to excuse his procedural default. We therefore affirm the district court.

BACKGROUND

Smith was convicted in October 1997 in Idaho state court of one count of lewd conduct with a minor under sixteen. He was sentenced to a term of 20 years-to-life.

Smith filed a timely appeal of his conviction and sentence with the Idaho Court of Appeals. The Court of Appeals rejected Smith's claims and affirmed his conviction and sentence on March 22, 1999. Smith's counsel on appeal did not file a petition for review with the Idaho Supreme Court within the twenty-one-day deadline. The Idaho Court of Appeals therefore issued its remittitur on April 13, 1999, and Smith's conviction became final.

Smith, proceeding pro se, filed a state post-conviction petition in August 1999. Smith also filed a number of motions, including a motion requesting the trial court to appoint counsel to assist in his post-conviction proceedings. The trial court never ruled on this motion one way or another. Smith's post-conviction petition was considered by the same trial court that had conducted Smith's trial, and that court issued a "Notice of Intent to Summarily Dismiss" in which it found that Smith's claims either failed on the merits or were barred because they were or could have been raised on direct appeal. Because Smith failed to file a response to the trial court's notice within the 20-day deadline, the court dismissed Smith's petition on April 28, 2000.¹

Smith appealed the trial court's decision to the Idaho Supreme Court. Smith also moved the trial court once again for appointment of counsel, this time to assist him on appeal. The trial court expressly denied this request without elaboration. Around October 5, 2000, Smith submitted a handwritten pro se brief entitled "Amended and Additional Briefs also Case Law's" to the Idaho Supreme Court. Smith also filed a motion requesting permission to file a handwritten brief. On October 20, 2000, the clerk of the Idaho Supreme Court returned the brief to Smith, alerting him that it did not comply with Idaho's Rules of Appellate Procedure. The clerk's letter indicated that a copy of the rules was enclosed and that Smith had until November 9, 2000 to file a proper brief. A few days later, Smith's motion to file a handwritten brief was granted.

After several additional filings by Smith, the Idaho Supreme Court issued an order on November 14, 2000, warning Smith that his appeal would be dismissed if he did not file a brief that complied with Idaho Rules of Appellate Procedure 34 and 35.² Smith ultimately failed to comply with the Supreme Court's order and that court dismissed Smith's appeal on December 19, 2000.

Smith then filed a federal habeas petition pro se on January 2, 2001. The state filed a motion to dismiss the petition on September 5, 2001. The district court granted this motion on September 3, 2002, finding that all of Smith's claims were procedurally barred because of Smith's failure to seek review from the Idaho Supreme Court during his direct appeal and because of his failure to file a proper brief with the Idaho Supreme Court. Smith timely appeals to our Court.

DISCUSSION

A. The District Court's Lack of Personal Jurisdiction over the Petition

Although neither the parties nor the district court have considered whether the district court lacked personal jurisdiction over Smith's habeas petition, we have an independent obligation to examine the jurisdiction of both the district court as well as our court. See Breed v. Hughes Aircraft Co., 253 F.3d 1173, 1177 (9th Cir.2001).

It is well-established in our Circuit that a petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name "the state officer having custody of him or her as the respondent to the petition." Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir.1994); see also Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts; Allen v. State of Oregon, 153 F.3d 1046, 1050 (9th Cir.1998). "This person typically is the warden of the facility in which the petitioner is incarcerated." Stanley, 21 F.3d at 360. We explained in Stanley that "[f]ailure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction" over the petition. Id.

As the caption of this case indicates, however, Smith named the State of Idaho — and not the state official having custody of him — as the respondent in his federal habeas petition. Thus, under Stanley, the district court lacked personal jurisdiction over Smith's habeas petition. Our inquiry does not end there, however, because it is well-recognized that personal jurisdiction — unlike subject-matter jurisdiction — may be waived. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived."); Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1406 (9th Cir.1994). Although we have not previously considered whether the lack of personal jurisdiction over a habeas petition may be waived by the state or an appropriate state official, we see no reason not to apply the general rule in the habeas context.³ In a § 2254 habeas petition, the immediate custodian is named as a respondent in his or her official capacity, as the state official legally responsible for the petitioner's continued detention. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996). Because the custodian is the state's agent — and the state is therefore the custodian's principal — the state may waive the lack of personal jurisdiction on the custodian's behalf.⁴

We hold that the State of Idaho waived the district court's lack of personal jurisdiction over Smith's immediate custodian and submits itself in the custodian's stead to the jurisdiction of the federal courts.⁵ We proceed to consider the merits of Smith's appeal.

B. Smith's Claim of Cause to Excuse his Procedural Default

The district court refused to consider the merits of Smith's claims in his habeas petition because of its conclusion that the claims were procedurally barred. In this appeal, Smith does not dispute that his claims are barred⁶ but instead contends that he can show cause and prejudice to excuse his procedural default. We review de novo the district court's decision to dismiss a habeas petition for procedural default. Cockett v. Ray, 333 F.3d 938, 941 (9th Cir.2003).

"To allege cause for a procedural default, a petitioner must assert that the procedural default is due to an objective factor that is external to the petitioner and that cannot fairly be attributed to him." Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir.2000) (quoting Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Smith makes two arguments regarding cause, both premised on a state statutory right to counsel that extends beyond the Sixth Amendment right and that has been interpreted to include a right to effective assistance of counsel. On the basis of these premises, Smith argues that his procedural default should be excused, first because his appointed counsel on direct appeal was ineffective in failing to file a petition for review with the Idaho Supreme Court, and second because the state trial court violated his statutory right to counsel by failing to appoint counsel during his post-conviction proceedings.

Smith's first argument lacks merit. It is well-established that criminal defendants have no constitutional right to counsel beyond their first appeal as of right, and hence no right to counsel in a discretionary appeal to the State's highest court. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); see also Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir.1993). Ineffective assistance of counsel can constitute cause to excuse a procedural default only if the petitioner had a constitutional right to counsel in the proceeding in which the default occurred. Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546. Any errors committed by Smith's counsel in seeking (or not seeking) discretionary review from the Idaho Supreme Court during the direct appeal thus cannot constitute cause under Coleman. The fact that counsel is appointed by the state court does not change the result, because counsel is not constitutionally required. See Poland v. Stewart, 169 F.3d 573, 588 (9th Cir.1999).

Smith's second argument is more compelling. Smith makes a strong case that the state trial court erred — as a matter of state law — in failing to appoint counsel for Smith during his post-conviction proceedings. Under Idaho law as it stood at the time of...