Dunlap v. Arave

Filing 187

INITIAL REVIEW ORDER OF AMENDED PETITION AND ORDER SETTING CASE MANAGEMENT TELECONFERENCE - Dunlap may proceed on the Amended Petition at this time. The Court will hold an initial case management teleconference on January 25, 2024, at 9:30 a.m. The State will place the call to (208)-334-9205 with opposing counsel on the line. Signed by Judge Amanda K Brailsford. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TIMOTHY ALAN DUNLAP,
Case No. 1:94-cv-00142-AKB
Petitioner,
CAPITAL CASE
v.
TIM RICHARDSON,
Respondent.

INITIAL REVIEW ORDER OF
AMENDED PETITION AND ORDER
SETTING CASE MANAGEMENT
TELECONFERENCE

Petitioner Timothy Alan Dunlap, an Idaho prisoner under a sentence of death, has filed an
Amended Petition for Writ of Habeas Corpus. (See Dkt. 186). The Court now reviews the
Amended Petition to determine whether it is properly before the Court. See D. Idaho Loc. Civ.
R. 9.2(c).
1.

Background
In 1991, in Caribou County Court, Dunlap pleaded guilty to first-degree murder. Dunlap

was sentenced to death. Following a concession of error by the State, Dunlap was resentenced to
death in 2006. Since then, Dunlap has been challenging his conviction and sentence in various
state post-conviction proceedings.
The initial petition in this case was filed in April 1997. (See Dkt. 25). The case was
previously stayed while Dunlap exhausted claims in state court and has since been reopened. (See
Dkts. 72, 77, 184). Dunlap filed his Amended Petition on September 25, 2023. (Dkt. 186).

INITIAL REVIEW ORDER OF AMENDED PETITION AND ORDER SETTING CASE
MANAGEMENT TELECONFERENCE - 1

2.

Discussion
Federal courts may issue writs of habeas corpus within their respective jurisdictions.

28 U.S.C. § 2241(a). Habeas corpus relief is available to prisoners who are held in custody under
a state court judgment that violates the Constitution, laws, or treaties of the United States. See 28
U.S.C. § 2254(a).
Habeas relief generally may not be granted on a claim if the petitioner did not properly
exhaust the claim in state court. 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Coleman v. Thompson, 501 U.S. 722,
750 (1991). Two exceptions to this requirement exist: (1) where a petitioner establishes cause and
prejudice to excuse the default; or (2) where a petitioner establishes that he is actually innocent.
Schlup v. Delo, 513 U.S. 298, 329 (1995); Murray v. Carrier, 477 U.S. 478, 488 (1986).
The Amended Petition asserts colorable constitutional claims. The Court does not have the
full record before it to determine whether Dunlap has properly exhausted his claims. Accordingly,
Dunlap may proceed on the Amended Petition to the extent that the 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 are subject to a legal excuse for any failure to exhaust in a proper
manner.
The Court will order an initial case management teleconference, in which the parties should
be prepared to discuss the following issues:
(A) Whether the properly-exhausted claims on the merits should be
decided first;
(B) Whether certain procedural defenses should be heard via a preanswer motion;
(C) Whether discovery on procedural issues is warranted;

INITIAL REVIEW ORDER OF AMENDED PETITION AND ORDER SETTING CASE
MANAGEMENT TELECONFERENCE - 2

(D) Whether the entire case should be stayed pending ongoing state
proceedings; and
(E) Whether the petitioner should be required to proceed on the
properly-exhausted claims while exhausting other claims in state
court.
D. Idaho Loc. Civ. R. 9.2(e)(3).
ORDER
IT IS ORDERED:
1.

Dunlap may proceed on the Amended Petition at this time.

2.

The Court will hold an initial case management teleconference on January 25,
2024, at 9:30 a.m. The State will place the call to (208)-334-9205 with opposing
counsel on the line.

DATED: January 23, 2024

_________________________
Amanda K. Brailsford
U.S. District Court Judge

INITIAL REVIEW ORDER OF AMENDED PETITION AND ORDER SETTING CASE
MANAGEMENT TELECONFERENCE - 3