Hoak v. State of Idaho

Filing 24

MEMORANDUM DECISION AND ORDER granting 22 Respondent's Motion to Dismiss. The Petition is hereby dismissed with prejudice. The Court will not grant a Certificate of Appealability in this case. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ARTHUR A. HOAK
Case No. 1:09-cv-0409-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
STATE OF IDAHO,
Respondent.

Pending before the Court in this habeas corpus action is Respondent State of
Idaho’s Motion for Summary Dismissal. (Dkt. 22). Petitioner failed to file a response
within the time period set forth in the Court’s Order dated August 8, 2011. (Dkt. 21).
Nonetheless, the Respondent’s Motion is ripe for consideration. Both parties have
consented to the jurisdiction of a United States Magistrate Judge to enter final orders in
this case. See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having reviewed the Respondent’s briefing, the record, and the state court record,
the Court finds that disposition of the Motion would not be aided by oral argument.
Accordingly, the Court enters the following Memorandum Decision and Order.
BACKGROUND
Petitioner was charged with three counts of burglary, two counts of grand theft,
and one count of petit theft. (State's Lodging A-1, pp. 24-26). Pursuant to a plea

MEMORANDUM DECISION AND ORDER- 1

agreement dated July 7, 2006, Petitioner pled guilty to one count of burglary and one
count of grand theft. (State's Lodging A-1, pp. 33-38). Petitioner was sentenced to
fourteen years, with the first ten years fixed for grand theft, and a concurrent ten year
sentence for burglary.1 (State's Lodging A-1, pp. 41-44). The judgment of conviction was
entered on July 16, 2006.
Petitioner filed a motion for correction or reduction of sentence under Idaho
Criminal Rule 35 (State’s Lodging A-1, pp. 61-68, 83-85), which the state court denied.
(State’s Lodging A-1, pp. 86-89). Petitioner also filed a direct appeal (State’s Lodging A1, pp. 45-49) to challenge the “excessive sentence” he received following the plea
agreement. (State’s Lodging B-1, p. 1). The Idaho Court of Appeals affirmed the
judgment of conviction and sentences. (State’s Lodging B-4). Petitioner did not file a
petition for review with the Idaho Supreme Court. As a result, the Court of Appeals
issued its remittitur on September 17, 2007. (State's Lodging B-5).
Seven months later, on April 16, 2008, Petitioner filed a petition and affidavit for
post conviction relief in the state district court. (State's Lodging C-1). Petitioner was
appointed counsel (State’s Lodging C-3), and the state filed an answer in response to the
petition. (State’s Lodging C-7). On August 27, 2008, a hearing was held on Petitioner’s
petition to address the sole issue of “ineffective assistance of counsel based upon the
Petitioner’s assertion that the plea bargain was violated and that he received a greater

1

Petitioner has an extensive criminal record dating back to the 1970s, including several
convictions for similar crimes. (State’s Lodgings A-3, 08/06/06 PSI, pp. 2-3; A-5, 11/22/95 PSI, pp. 2-6).
MEMORANDUM DECISION AND ORDER- 2

sentence than the attorneys had agreed upon.” (State’s Lodging, C-8, p.1). The court
issued its memorandum decision on September 9, 2008, declining to grant Petitioner’s
post-conviction relief. (State’s Lodging C-8). Petitioner did not appeal that decision. (See
State’s Lodging C-9, Register of actions showing absence of appeal).
Petitioner filed his federal habeas Corpus Petition (“Petition”) on August 24, 2009
(Dkt. 3), and alleged three claims: 1) he was deprived of his right to effective assistance
of counsel during the post-conviction proceeding; 2) he was deprived of his right to
effective assistance of counsel at sentencing when counsel failed to object to Petitioner’s
presentence investigation report; and 3) his right to due process of law was violated
because the State did not abide by the terms of Petitioner’s plea agreement. (Dkt. 3, pp. 23). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, this Court
preliminarily reviewed the Petition and issued its Initial Review Order dismissing
Petitioner’s first claim for habeas relief and ordering Respondent to file its answer or
other pre-answer motion to dismiss. (Dkt. 10, p. 4).
On February 11, 2011, Petitioner filed a “Motion for Leave-to Amend the Writ
FRCP” (Dkt. 15) and a “Motion for Reconsideration, FRCP” to appoint counsel (Dkt.
16). Respondent filed responses to both of Petitioner’s Motions, as well as its Motion for
Summary Dismissal. (Dkt. 17, 18, 19). On August 8, 2011, this Court issued an Order
granting Petitioner’s Motion for Leave to Amend, denying Petitioner’s Motion for
Reconsideration, and dismissing Respondent’s Motion for Summary Dismissal without
prejudice. (Dkt. 21).
MEMORANDUM DECISION AND ORDER- 3

Respondent refiled its Motion for Summary Dismissal on September 26, 2011
(Dkt. 22), after Petitioner failed to file an Amended Petition within the thirty day time
period set forth in this Court’s Order (Dkt. 21, p. 2). Petitioner has not filed any response
to Respondent’s Motion for Summary Dismissal, and the time to do so has long since
passed.
STANDARD OF LAW
1. Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily
dismiss a petition for writ of habeas corpus when “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the
district court.” In such case, the Court construes the facts in a light most favorable to the
petitioner. When a court is considering a motion to dismiss, it may take judicial notice of
facts outside the pleadings. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281
(9th Cir. 1986).2 A court may look beyond the complaint to matters of public record, and
doing so does not convert a motion for summary dismissal into a motion for summary
judgment. Id. Accordingly, the Court shall take judicial notice of those portions of the
state court record lodged by Respondent.
2. Statute of Limitations
The current Petition is governed by the provisions of the Anti-Terrorism and

2

abrogated on other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino, 501 U.S. 104,
111 S.Ct. 2166 (1991).
MEMORANDUM DECISION AND ORDER- 4

Effective Death Penalty Act (AEDPA), enacted in 1996. Under AEDPA, a one-year
period of limitation applies to an application for a writ of habeas corpus. 28 U.S.C. §
2244(d)(1). The one-year period begins to run from the date of one of four triggering
events, as specified in 28 U.S.C. § 2244(d)(1)(A)-(D). The most common triggering event
occurs on the date upon which the conviction became final, either after direct appeal or
after the time for seeking an appeal expired.
The statute provides tolling (suspending) of the one-year period for all of “[t]he
time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). This is called “statutory tolling.”
For statute of limitations purposes, a judgment becomes final when the Idaho
Court of Appeals issues its remittitur, marking the expiration of the time for filing a
petition for review with the Idaho Supreme Court. See Hemmerle v. Schriro, 495 F.3d
1069, 1073-74 (9th Cir. 2007); Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).
If, after applying statutory tolling, a petitioner’s petition is deemed untimely, a
federal court can hear the claims only if the petitioner can establish that “equitable
tolling” should be applied. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Court
clarified that,“[g]enerally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstances stood in his way.” Id. at 418. To qualify for equitable
tolling, the extraordinary circumstance must have caused Petitioner to be unable to file his
MEMORANDUM DECISION AND ORDER- 5

federal petition in time. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The
petitioner bears the burden of bringing forward facts to establish a basis for equitable
tolling. United States v. Marolf, 173 F.3d 1213, 1318, no. 3 (9th Cir. 1999).
DISCUSSION
Petitioner's judgment became final on September 17, 2007, when the Idaho Court
of Appeals issued its remittitur on direct appeal. (State’s Lodging B-5). Because
Petitioner did not present his claims to the Idaho Supreme Court, he does not qualify for
the additional 90 days that is added for the filing of a petition for writ of certiorari with
the United States Supreme Court when one exhausts his claim through the highest state
court. See Hemmerle, 495 F.3d at 1073-74; Sup. Ct. R. 13. Thus, Petitioner's federal
habeas corpus statute of limitations began running on September 17, 2007.
Petitioner's federal statute of limitations was tolled (or stopped) when he filed his
state application for post-conviction relief on April 16, 2008; at the time of that filing,
212 days of the federal limitations period had passed. Petitioner’s post-conviction petition
was dismissed September 9, 2008 (State’s Lodging C-8), and he did not appeal that
dismissal. Accordingly, the federal statute began running again on October 21, 2008,
which is the date that Petitioner’s time to file an appeal expired, and the date when his
post-conviction case became final.3 This means Petitioner had 153 days remaining in the
one year limitations period in which to timely file his Petition, or until Monday, March

3

See Idaho App. R. 14 (appeal from the district court must be made within 42 days from the filing
date stamped on the court’s appealable judgment or order).
MEMORANDUM DECISION AND ORDER- 6

23, 2009. However, Petitioner waited until August 24, 2009 - 154 days after the
limitations period expired - to file his Petition. (Dkt. 3). The Petition is therefore deemed
untimely.
Petitioner has not made any argument for equitable tolling, and the Court finds no
factual basis that would support such an argument in the record before it. Accordingly,
Petitioner’s Petition is subject to dismissal with prejudice, and the Court finds
Respondent’s procedural default argument as to Claims 2 and 3 moot.
CERTIFICATE OF APPEALABILITY
In the event Petitioner files a notice of appeal from the Order and Judgment in this
case, and in the interest of conserving time and resources, the Court now evaluates the
two remaining claims within the Petition for suitability for issuance of a certificate of
appealability (COA), which is required before a habeas corpus appeal can proceed. 28
U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Rule 11(a),
Rules Governing Section 2254 Cases.
A COA will issue only when a petitioner has made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has
explained that, under this standard, a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citation and
punctuation omitted).
MEMORANDUM DECISION AND ORDER- 7

When a court has dismissed a petition or claim on procedural grounds, in addition
to showing that the petition “states a valid claim of the denial of a constitutional right,” as
explained above, the petitioner must also show that reasonable jurists would find
debatable whether the court was correct in its procedural ruling. Id. The COA standard
“requires an overview of the claims in the habeas petition and a general assessment of
their merits,” but a court need not determine that the petitioner would prevail on appeal.
Miller-El, 537 U.S. at 336.
Here, the Court has dismissed Petitioner’s claims on procedural grounds. The
Court finds that additional briefing on the COA is not necessary. Having reviewed the
record thoroughly, the Court concludes that reasonable jurists would not find debatable
the Court’s decision on the procedural issues and that the issues presented are not
adequate to deserve encouragement to proceed further. As a result, the Court declines to
grant a COA on any issue or claim in this action.
If he wishes to proceed to the United States Court of Appeals for the Ninth Circuit,
Petitioner may file a notice of appeal in this Court within 30 days after entry of this
Order, and file a motion for COA in the Ninth Circuit Court of Appeals, pursuant to
Federal Rule of Appellate Procedure 22(b).
ORDER
IT IS ORDERED:
1.

Respondent's Motion for Summary Dismissal (Dkt. 22) is GRANTED and
the Petition is hereby dismissed with prejudice.

MEMORANDUM DECISION AND ORDER- 8

2.

The Court will not grant a Certificate of Appealability in this case. If
Petitioner chooses to file a notice of appeal, the Clerk of Court is ordered to
forward a copy of this Order, the record in this case, and Petitioner’s notice
of appeal, to the United States Court of Appeals for the Ninth Circuit.
DATED: August 24, 2012

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER- 9