Thumm v. Tewalt, 102720 IDDC, 1:19-cv-00389-DCN

Docket Nº1:19-cv-00389-DCN
Party NameVANCE EVERETT THUMM, Petitioner, v. JOSH TEWALT, IDOC Director, Respondent.
Case DateOctober 27, 2020
CourtUnited States District Courts, 9th Circuit, District of Idaho



JOSH TEWALT, IDOC Director, Respondent.

No. 1:19-cv-00389-DCN

United States District Court, D. Idaho

October 27, 2020



Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho state prisoner Vance Everett Thumm, challenging Petitioner's state court conviction. See Dkt. 1. Respondent has filed a Motion for Partial Summary Dismissal, which is now ripe for adjudication. See Dkt. 20.

The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged by Respondent. Dkt. 21; see Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).

Having carefully reviewed the record, including the state court record, the Court finds that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Respondent's Motion and dismissing the following claims with prejudice: Claims 1, 2, 4(b), 7(a), 7(b), 7(e), 8(b), 10, 11(a), and 12.


The facts underlying Petitioner's conviction are set forth clearly and accurately in State v. Thumm, 285 P.3d 348 (Idaho Ct. App. 2012). The facts will not be repeated here except as necessary to explain the Court's decision.

Following a jury trial in the Fourth Judicial District Court in Ada County, Idaho, Petitioner was convicted of aggravated battery, along with a persistent violator enhancement. Id. at 351. The conviction stemmed from the beating and stabbing of Devin Ohls in a motel room by multiple attackers. Specifically, Petitioner had “attacked Ohls, striking him with a closed fist several times in the head, ” and another assailant, Frankie Hughes, had “kicked Ohls and stabbed him in the buttock.” Id. at 350-51. Yet another assailant, Chris Smith, pleaded guilty “to stabbing Ohls during the altercation.” Id. at 354.

Petitioner was sentenced to a unified term of forty years in prison with fifteen years fixed. The Idaho Court of Appeals affirmed the conviction, and the Idaho Supreme Court denied review. Id. at 360; State's Lodging B-8.

Petitioner then filed a state post-conviction petition. The state district court summarily dismissed the petition. State's Lodging C-1 at 348-93. The Idaho Supreme Court retained the case and affirmed. That court denied Petitioner's petition for rehearing but issued a substitute opinion that did not change the result. See Thumm v. State, 447 P.3d 853 (Idaho Aug. 22, 2019), withdrawing and superseding Thumm v. State, 2019 WL 848061 (Idaho Feb. 22, 2019); State's Lodging D-9.

In the instant federal habeas corpus petition, Petitioner asserts the following claims: Claim 1: “The district court committed reversible error by denying motion for mistrial after one of the states [sic] witnesses referenced [Petitioner's] alleged gang affiliation.” Dkt. 1 at 6.

Claim 2: “The district court committed reversible error in concluding that if the defense called Chris Smith to testify then the state would be permitted to impeach his testimony with information that both [Petitioner] and Mr. Smith are alleged gang members from different gangs.” Id. at 7.

Claim 3: “[Petitioner's] due process rights were violated when the state introduced evidence that he invoked his fifth amendment rights to infer guilt during case in chief and closing argument.” Id. at 8.

Claim 4: “[Petitioner] was denied his constitutional right to a fair trial due to the serious and relentless acts of prosecutorial misconduct, ” in the following respects: (a) “appeal[ing] to jury's passions and prejudices”; (b) “misstat[ing] the reasonable doubt standard”; and (c) “elicit[ing] evidence that [Petitioner] invoked his fifth amendment rights to infer his guilt.” Id. at 9.

Claim 5: Cumulative error based on the errors identified in Claims 1 through 4. Id. at 10. The Court agrees with Respondent that Claim 5 should be construed as cumulative error based on the claims Petitioner raised on direct appeal.

Claim 6: Ineffective assistance of counsel in the following respects: (a) trial counsel's conduct “regarding joinder of the trial with co-defendants”; (b) trial counsel's “failure to object to the hearsay statements of [Petitioner's] co-defendant being introduced in [Petitioner's] trial”; and (c) appellate counsel's failure “to raise this issue as fundamental error on direct appeal.” Id. at 11.

Claim 7: Ineffective assistance of trial counsel, based on “lack of preparation, ” in the following respects: (a) late disclosure of defense witnesses; (b) missing a “deadline to submit redacted audio tapes”; (c) “failing to timely file a motion to suppress the photo line ups”; (d) failing “to adequately meet, communicate, or prepare with [Petitioner] and fail[ing] to provide and/or review the discovery with him”; and (e) failing to prepare “for the testimony of Helen Fisher.” Id. at 12.

Claim 8: Ineffective assistance of trial counsel in the following respects: (a) failing “to oppose the proposed impeachment of witnesses by gang membership”; (b) failing to call witnesses; (c) “failing to object to testimony of Jeremy Steinmetz and … failing to impeach him”; (d) failing “to object to the prosecutions [sic] use of the term ‘prison'”; (e) failing use fingerprint evidence that was “exculpatory[] [and] not incriminating”; (f) failing to object to prosecutorial misconduct; (g)

failing to impeach Frankie Hughes on the basis of bias; and (h) failing to impeach, “refresh, ” or “follow up” with detectives. Id. at 13.

Claim 9: Violation of Brady v. Maryland, 373 U.S. 83 (1963), based on the state's “failure to timely disclose a fingerprint report. Id. at 14.

Claim 10: Prosecutorial misconduct during closing argument in the following respects: (a) taking “advantage … of [the prosecutor's] own nondisclosure of the fingerprint evidence”; (b) making “disparaging comments about defense counsel and the defense”; (c) making “unsupported comments about the victim … being afraid of [Petitioner]”; (d) arguing “that Jeremy Steinmetz was afraid of [Petitioner]”; (e) “mischaracteriz[ing] significant evidence”; and (f) using inflammatory language. Id. at 15.

Claim 11: Claim 11(a) asserts ineffective assistance of sentencing counsel. Claim 11(b) asserts ineffective assistance of direct appeal counsel for “failing to raise the Bruton issue, Abel issue, and Brady issue, and all instances of prosecutorial misconduct.” Id. at 16.

Claim 12: Cumulative error based on the errors identified in Claims 6 through 11. Id. at 17. The Court agrees with Respondent that Claim 12 should be construed as cumulative error based on the claims Petitioner raised on appeal from the dismissal of his post-conviction petition.

See Dkt. 11 at 2-4; see also Dkt. 20-1 at 6 n.3.

The Court previously reviewed the Petition and allowed Petitioner to proceed on his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action, (2) were timely filed in this Court, and (3) were either properly exhausted in state court or subject to a legal excuse for any failure to exhaust in a proper manner.” Dkt. 11 at 4.

Respondent now argues that Claims 1, 2, 10, and 12, as well as portions of Claims 4, 7, 8, and 11, must be dismissed because they are procedurally defaulted without legal excuse. For the reasons that follow, the Court agrees.


1. Standard of Law Governing Summary Dismissal

The Rules Governing § 2254 Cases (“Habeas Rules”) authorize the Court to summarily dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the petition and any attached exhibits, ” as well as those records subject to judicial notice, “that the petitioner is not entitled to relief in the district court.” Habeas Rule 4. Where appropriate, a respondent may file a motion for summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

2. Procedural Default Standards of Law

A habeas petitioner must exhaust his or her remedies in the state courts before a federal court can grant relief on constitutional claims. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must invoke one complete round of the state's established appellate review process, fairly presenting all constitutional claims to the state courts so that they have a full and fair opportunity to correct alleged constitutional errors at each level of appellate review. Id. at 845. In a state that has the possibility of discretionary review in the highest appellate court, like Idaho, the petitioner must have presented all of his federal claims at least in a petition seeking review before that court. Id. at 847. “Fair presentation” requires a petitioner to describe both the operative facts and the legal theories upon which the federal claim is based. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).

The mere similarity between a federal claim and a state law claim, without more, does not satisfy the requirement of fair presentation. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). General references in state court to “broad constitutional principles, such as due process, equal protection, [or] the right to a fair trial, ” are likewise insufficient. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). For proper exhaustion, a petitioner must bring his federal claim before the state court by “explicitly” citing the federal legal basis for his claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), as amended, 247 F.3d 904 (9th Cir. 2001).

When a habeas petitioner has not fairly presented a constitutional claim to the highest state court, and the state court would...

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