Vavold v. Blades

Filing 15

MEMORANDUM DECISION AND ORDER granting 6 Motion to Dismiss; denying 12 Motion to Appoint Counsel. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JERRY VAVOLD,
Case No. 1:09-CV-00566-REB
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

RANDY BLADES, Warden,
Respondent.

Pending before the Court in this habeas corpus matter are Petitioner’s Motion for
Appointment of Counsel (Dkt. 12) and Respondent’s Motion for Summary Dismissal on
statute of limitations and procedural default grounds (Dkt. 6). Both parties have consented
to the jurisdiction of a United States Magistrate Judge to enter final orders in this case.
(Dkt. 9.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Having reviewed the parties’
arguments and the record in this matter, the Court enters the following Order.
BACKGROUND
In November 1999, Petitioner pleaded guilty to and was convicted of lewd conduct
with a minor, a violation of Idaho Code § 18-1508, in the Second Judicial District Court
in Nez Perce County, Idaho. (State’s Lodging A-1, pp. 27-29.) Petitioner received a

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sentence of five years fixed with fifteen years indeterminate. The judgment of conviction
was entered on November 17, 1999. (Id., pp. 28-29.)
After conviction, Petitioner filed a direct appeal. The conviction and sentence were
affirmed on appeal by the Idaho Court of Appeals, and the Idaho Supreme Court denied
the petition for review on December 11, 2000. The remittitur was entered the same day.
(State’s Lodgings B-1 to B-8.)
After his direct appeal concluded, Petitioner had nothing pending in state court
until he filed an application for post-conviction relief on November 26, 2007. (State’s
Lodging C-1, pp. 3-7.) Petitioner relied on Estrada v. State, 149 P.3d 833 (Idaho 2006),
where the Idaho Supreme Court determined that the Sixth Amendment guaranteed the
right to the assistance of counsel for advice regarding participation in a psychosexual
evaluation for purposes of sentencing. Id. at 838.1
Petitioner’s post-conviction application was dismissed as untimely by the state
district court. (State’s Lodging C-1, pp. 35-48.) On appeal, the Idaho Supreme Court
affirmed the state district court’s decision in an opinion issued on August 21, 2009, and
the remittitur was issued on October 22, 2009. (State’s Lodgings D-1 through D-7;
Vavold v. State, 218 P.3d 388 (Idaho 2009).) In its opinion, the Idaho Supreme Court
agreed with the state district court that Petitioner’s post-conviction application was
untimely, because it should have been filed within one year of the finality of direct

1

The Estrada Court further clarified that this right “does not necessarily require the
presence of counsel during the exam.” Id. at 838 (italics in original).
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appeal, in 2001, rather than in 2007, shortly after Estrada was issued. The Idaho Supreme
Court also stated, “we note, admittedly by way of dicta, that we agree with the district
court’s conclusion that Estrada did not announce a new rule of law.” Vavold, 218 P.3d at
390. That dicta became precedent in Kriebel v. State, 219 P.23 1204, 1207 (Idaho Ct.
App. 2009), where it was determined that Estrada did not announce a new, retroactivelyapplicable rule.
Shortly after the Idaho Supreme Court’s decision in his own case, Petitioner filed
this federal habeas corpus action, on November 4, 2009. Respondent argues that the
Petition should be summarily dismissed on grounds of untimeliness and procedural
default. Because it does not appear that appointment of counsel would benefit the Court
in the decisionmaking process, the Court will deny Petitioner’s second request for
appointment of counsel (Dkt. 12). Further, because the Court determines that the Petition
is, in fact, untimely, the Court will not address Respondent’s procedural default argument.
MOTION TO DISMISS
1.

Standard of Law
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. It is appropriate for the Court to take judicial notice of court dockets from state
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court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir.
2006).
The Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted April 24,
1996, established a one-year statute of limitations for federal habeas corpus actions. See
28 U.S.C. § 2244(d)(1). Because Petitioner’s federal habeas corpus petition was filed
after AEDPA’s enactment date, it is subject to the one-year statute of limitations.
Title 28 U.S.C. § 2244(d)(1) provides that the one-year statute of limitations is
triggered by one of four events:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
AEDPA also contains a tolling provision that stops the one-year limitation period
from running during the time in “which a properly filed application for State
postconviction or other collateral review with respect to the pertinent judgment or claim
is pending.” 28 U.S.C. § 2244(d)(2). The Ninth Circuit has interpreted 28 U.S.C. §

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2244(d)(2) to mean that the one-year statute of limitation is tolled for “all of the time
during which a state prisoner is attempting, through proper use of state court procedures,
to exhaust state court remedies with regard to a particular post-conviction application.”
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (citation and internal quotation
marks omitted).
However, once the federal statute of limitations has expired, a later-filed state
court action will not serve to reinstate or resurrect the federal statute of limitations period.
See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) (“section 2244(d) does not
permit the reinitiation of the limitations period that has ended before the state petition was
filed”); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (petitioner was not entitled
to tolling for state petitions filed after federal time limitation has run).
If, after applying statutory tolling, a petition is deemed untimely, a federal court
can hear the claims only if the petitioner can establish that “equitable tolling” should be
applied. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). 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 a circumstance must have caused Petitioner to be unable to
file his federal Petition in time. The petitioner bears the burden of bringing forward facts

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to establish a basis for equitable tolling. United States v. Marolf, 173 F.3d 1213, 1318, n.3
(9th Cir. 1999).
2.

Discussion
The Idaho Supreme Court issued its remittitur in Petitioner’s direct appeal on

December 11, 2000. Petitioner could have filed a petition for writ of certiorari to the
United Sates Supreme Court, and, thus, his federal statute of limitations did not begin
running until the 90-day certiorari deadline had expired, on March 11, 2001.
Petitioner’s federal statute of limitations ran for one year, from March 11, 2001, to
March 11, 2002. Petitioner filed no state-law action that would have tolled the federal
statute during that time period. When Petitioner filed his state post-conviction application
in 2007, it was too late to toll the federal statute, and the filing did not restart the statute.
There is no set of facts in the Petition that would suggest that any other provision
of 28 U.S.C. § 2244(d)(1) would come into play to permit Petitioner to argue that his
statute of limitations started at a later date.
Petitioner argues that he was not aware of the Sixth Amendment violation
addressed in Estrada until that decision was issued in 2007, and that fact should serve to
either restart the statute of limitations for that claim or serve to equitably toll the statute.
While it is true that Petitioner may have pursued his claim diligently in the state courts
once he learned of it, there is no federal provision of law that restarts the statute when a
state court issues an opinion addressing a federal constitutional issue. Notably,
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§ 2244(d)(1)(C) (cited above) would not apply, because it is limited to decisions of the
United States Supreme Court.2 Similarly, § 2244(d)(1)(D) would not apply because,
although the Idaho Supreme Court case law was “new,” the facts supporting Petitioner’s
particular claim were not new and could have been brought either at the time of direct

2

As noted above, in Kriebel v. State, 219 P.2d 1204 (Idaho Ct. App. 2009), the Idaho
Court of Appeals addressed retroactive application of Estrada, concluding that Estrada did not
apply retroactively because it did not announce a “new” rule, and, even if it did, it did not
constitute a “watershed” rule of criminal procedure under Teague v. Lane, 489 U.S. 288 (1989)
(plurality opinion). Id. at 1206-07. Teague established the principle that, absent certain narrow
exceptions, new constitutional rules of criminal procedure that are decided after a defendant’s
conviction becomes final on direct appeal will not be applied retroactively to the defendant if he
seeks collateral review of his conviction. 489 U.S. at 310. This non-retroactivity principle was
adopted by a majority of the United States Supreme Court in Penry v. Lynaugh, 492 U.S. 302,
313 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).
It is important to note that the issue of whether Estrada was deemed retroactive or not by
the Idaho courts (there was some disagreement among district courts prior to the Idaho appellate
courts settling that issue) does not directly bear on the question of whether a petitioner’s federal
habeas corpus statute of limitations has been met unless, as a result of the Estrada claim, the
petitioner was actually granted different relief in the form of a new sentence, or the re-opening of
a new direct appeal. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (noting that if two
different state court sentencing judgments were entered as to the same conviction, the federal
statute of limitations would run from the later amended judgment); see also Jimenez v.
Quarterman, 555 U.S. 113, 129 S.Ct. 681 (2009) (“We hold that, where a state court grants a
criminal defendant the right to file an out-of-time direct appeal during state collateral review, but
before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for
purposes of § 2244(d)(1)(A). In such a case, ‘the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review’ must reflect the
conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of
that appeal.”) Id., 129 S.Ct. at 686-87.

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appeal or in a post-conviction action filed within one year of the finality of Petitioner’s
direct appeal, which would have statutorily tolled the federal statute of limitations.
Petitioner also argues that he has established “extraordinary circumstances,” such
that equitable tolling should be applied to his case, because of the newness of Estrada.
However, “extraordinary circumstances” refers to a set of facts, not a new state-court
interpretation of law. See Holland, 130 S.Ct. at 2565. The Court cannot use the
“extraordinary circumstances” exception to carve out an equitable exception for a new
state-court interpretation of law to supplement the statute, when Congress excluded that
exception when it considered the issue of timeliness, allowing only for instances where
new United States Supreme Court cases are applied retroactively. See § 2244(d)(1)(C).
Here, Petitioner has pointed to no set of facts that could be deemed an
“extraordinary circumstance” preventing him from filing his federal petition in time, nor
has he shown that any set of facts is causally connected to missing the deadline, such that
equitable tolling would be applicable.

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3.

Conclusion
Federal habeas corpus petitions are governed strictly by statute. Common sense

alone might dictate a finding of timeliness where Petitioner diligently pursued his Estrada
claim through the Idaho Supreme Court as soon as it was known to him, and then wasted
no time in filing his Estrada claim in this Court. However, the federal habeas corpus
statute prevents such a result, because Congress expressly intended habeas corpus to be a
remedy of limited application, overriding a common-sense approach in favor of finality
and deference to decisions of only the United States Supreme Court. Under the law, the
Petition is untimely, and no factual circumstances exist that would merit application of
equitable tolling. As a result, the Petition is subject to dismissal with prejudice.
REVIEW OF THE CLAIMS AND THE COURT’S DECISION
FOR PURPOSES OF CERTIFICATE OF APPEALABILITY
Upon dismissal or denial of a habeas corpus petition, the Court is required to
evaluate the claims within the petition for suitability for issuance of a certificate of
appealability (COA). 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 petitioner’s appeal cannot
proceed without obtaining a COA and filing a timely notice of appeal.
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

MEMORANDUM DECISION AND ORDER - 9

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).
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. Slack, 529 U.S. at 484.
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. The Court has carefully searched
the record and reviewed the law independently of what Respondent has provided to
satisfy itself that justice has been done in this matter where Petitioner is representing
himself pro se and has limited access to legal resources. As a result of all of the
foregoing, the Court declines to grant a COA on any issue or claim in this action.
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If he wishes to proceed to the United States Court of Appeals for the Ninth Circuit,
Petitioner must file a notice of appeal in this Court, and simultaneously file a motion for
COA in the Ninth Circuit Court of Appeals, pursuant to Federal Rule of Appellate
Procedure 22(b), within thirty (30) days after entry of this Order.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Appointment of Counsel (Dkt. 12) is DENIED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 6) is GRANTED.
Petitioner’s Petition for Writ of Habeas Corpus is DISMISSED with
prejudice.

3.

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: June 14, 2011

Honorable Ronald E. Bush
U. S. Magistrate Judge

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