Cutler v. Smith

Filing 26

MEMORANDUM DECISION AND ORDER denying as moot 9 Motion to Expedite; denying 10 Motion in Support of Issuance of Subpeona; denying as moot 12 MOTION for Issuance of Subpoena Duces Tecum ; granting 15 Motion to Dismiss; granting 17 Motion to Withdraw, dismissing 3 Petition for Writ of Habeas Corpus ; granting 18 Motion for Extension of Time to File; granting 20 Motion for Leave to File. Signed by Judge B. Lynn Winmill. (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

MARK W. CUTLER,
Case No. 1:10-CV-00304-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
WARDEN SMITH,
Respondent.

Pending before the Court in this habeas corpus action is Respondent’s Motion to
Dismiss (Dkt. 15) and several motions filed by Petitioner (Dkt. 9, 10, 12, 17, 18, & 20).
Having reviewed the parties’ briefing, as well as the state court record in this matter, the
Court concludes that oral argument would not aid in the decisionmaking process.
Accordingly, the Court enters the following Order.
BACKGROUND
Petitioner pleaded guilty to and was convicted of felony Driving Under the
Influence in a state criminal action filed in the Fifth Judicial District Court in Blaine
County, Idaho. Judgment of conviction was entered on July 17, 2000. (State’s Lodging A1, pp. 35-37.) Petitioner received a sentence of two years fixed, with three years
indeterminate. Petitioner filed a direct appeal, challenging his sentence. (State’s Lodgings

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B-1 to B-10.) A remittitur, issued on September 14, 2001, was withdrawn on October 24,
2001. (State’s Lodging B-8.) The final remittitur was issued on December 18, 2001,
concluding the direct appeal. (Id., B-10.)
Petitioner next filed a Rule 33 motion to withdraw his guilty plea on August 28,
2008 (mailbox rule) or September 4, 2008 (filing date). The district court denied the
motion on the merits, but the Idaho Court of Appeals determined that the district court
was without jurisdiction to adjudicate the merits of the motion because the motion was
filed after judgment became final. (State’s Lodging D-4.) Petitioner filed a petition for
review with the Idaho Supreme Court, which was denied. The remittitur was issued on
May 24, 2010. (State’s Lodgings D-5 through D-8.)
In his federal Petition for Writ of Habeas Corpus, Petitioner brings two claims:
failure to appoint counsel under the Fifth and Sixth Amendments, and unreasonable
search and seizure under the Fourth Amendment. Respondent has filed a Motion to
Dismiss on several grounds, including failing to meet the “in custody” requirement at the
time of filing, untimeliness, and procedural default. Because the Court concludes that the
Petition is subject to dismissal with prejudice because it was not filed within the one-year
statute of limitations period, the Court will not address Respondent’s alternative
arguments for dismissal.

MEMORANDUM DECISION AND ORDER - 2

REVIEW OF 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
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
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(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. §
2244(d)(2) to mean that the one-year statute of limitations 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

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

Discussion
As set forth above, after Petitioner’s judgment of conviction was entered, he filed a

direct appeal. The final remittitur in that action was issued on December 18, 2001.
Petitioner had ninety days from December 18, 2001, in which to file a petition for writ of
certiorari with the United States Supreme Court, which would have been through March
18, 2002.
Petitioner’s federal statute of limitations began running on March 18, 2002, and
continued for one year, until March 18, 2003, when it expired. Petitioner filed no state
post-conviction collateral proceeding during that time period that would have statutorily
tolled the statute of limitations. Therefore, Petitioner’s federal filing, on June 15, 2010
(mailbox rule), was too late to toll the statute, which had expired seven years earlier.
Petitioner’s Rule 33 motion to withdraw his guilty plea, filed on September 4,
2008, was too late to statutorily toll the statute of limitations. In addition, because the
state courts determined that Petitioner’s Rule 33 motion was untimely, it was not a
“properly filed” collateral challenge that would entitle him to statutory tolling under
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§ 2244(d)(2). See Pace v. DiGulguglielmo, 544 U.S. at 417.
Petitioner argues that the decision of the United States Supreme Court in Jimenez
v. Quarterman, 555 U.S. 113, 129 S.Ct. 681 (2009), supports his argument that the
federal statute of limitations began anew after Petitioner filed his Rule 33 motion.
Petitioner’s reliance on Jimenez is misplaced. In that case, the United States Supreme
Court determined that if a state court re-opens the direct appeal time period, then the
federal habeas corpus statute can run again from that date.1 555 U.S. at 686. In
Petitioner’s case, the Idaho Court of Appeals did not re-open the direct appeal time
period when Petitioner filed his Rule 33 motion; rather, the Court of Appeals determined
that, because Petitioner’s Rule 33 motion was untimely, it could not be adjudicated on the
merits. (State’s Lodging D-4.) As a result, for habeas corpus statute of limitation
purposes, Petitioner’s Rule 33 motion was simply an untimely post-conviction application
that is governed by the rule in Ferguson v. Palmateer (late actions do not toll or restart
the habeas corpus statute of limitations), rather than Jimenez v. Quarterman.

1

In Jimenez, the Court emphasized:

Our decision today is a narrow one. 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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Petitioner also argues that he did not discover facts supporting his “actual
innocence” of the DUI crime until 2009, and that late discovery should reopen or extend
the statute of limitations. (Response, Exhibit 2, Dkt. 21-3.) Petitioner relies on
§ 2244(d)(1)(D), providing that the statute of limitations can run from “the date on which
the factual predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.”
Petitioner argues that he “exercised all the diligence that he had by making literally
hundreds of calls to his Father before he felt comfortable asking for the affidavit that the
car he was in was not in an accident, the only way a peace officer, pursuant to Idaho state
law, in 2000, could compel a blood draw.” (Response, Dkt. 21, p. 14.) Petitioner has
provided the Affidavit of his father, Carl William Cutler, which states that, when the
father picked up the car from the towing company, it had “no scratches or other damage,”
and he was told by the tow driver that “it was stuck in a snow bank at Woodside.”
(Affidavit of Car William Cutler, Dkt. 21-3, pp. 2-3.)
Petitioner’s argument fails because the factual predicate of the claim was already
known to Petitioner at the time he was charged with the crime. First, Petitioner himself
had knowledge that the car had not been in an accident, and he could have produced the
car or photographs of the car at trial to prove this point. Second, Petitioner could have
called his father and the tow truck driver to court to testify under subpoena about the
condition of the car. Petitioner’s facts simply do not fit the requirements of
§ 2244(d)(1)(D), and, thus, his statute of limitations on his current claims did not start in
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2009, when he obtained the Affidavit from his father.
Nor do these facts fit § 2244(d)(1)(B), because Petitioner has not identified an
“impediment to filing an application created by state action” that fits within the
interpretation of that subsection as defined by the higher courts. In Shannon v. Newland,
410 F.3d 1083 (9th Cir. 2005), the United States Court of Appeals for the Ninth Circuit
rejected Petitioner Shannon’s argument that the substantive decision of the state court
constituted a “state-created impediment.” Id. at 1087.
The Court explained:
We are not persuaded . . . that the state appellate court’s decision was
an “impediment” to Shannon's filing a habeas petition. He was free to file
such a petition at any time. Shannon's real objection is that the state court's
decision determined state law in a way that provided no legal basis for a
federal habeas petition: since the state court held that the challenged
instruction accurately defined voluntary manslaughter under California law,
Shannon could not successfully argue in federal court that the instruction
was so mistaken as to violate due process.
* * *
The limited case law applying § 2244(d)(1)(B) has dealt almost
entirely with the conduct of state prison officials who interfere with
inmates’ ability to prepare and to file habeas petitions by denying access to
legal materials. See, e.g., Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.
2000) (en banc); Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003). A
plurality of the Supreme Court has also suggested that the provision would
apply if a “state court ... refuse[d] to rule on a constitutional claim that ha[d]
been properly presented to it.” Lackawanna County Dist. Att'y v. Coss, 532
U.S. 394, 405, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (plurality op. of
O'Connor, J.). These cases comport with the plain meaning of the provision,
which applies when a petitioner has been impeded from filing a habeas
petition.
Id. at 10876-88.
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Following Shannon and the cases cited therein, the Court concludes that the state
court’s refusal to entertain a late-filed post-conviction motion based on a well-established
state jurisdictional rule governing finality of criminal convictions, as in Petitioner’s case,
is not an “impediment” under § 2244(d)(1)(B). (State’s Lodging D-4, p. 2.) Neither is
Petitioner’s inability to convince his father to sign an affidavit for him a “state-created”
impediment.
Petitioner also argues that his failure to meet the federal statute of limitations
should be waived because he is actually innocent. However, while the United States
Court of Appeals for the Ninth Circuit previously left open the question of whether there
was an “actual innocence” exception to the AEDPA statute of limitations, that Court
foreclosed that argument in Lee v. Lampert, 610 F.3d 1125 (9th Cir. 2010). There, the
Court held that, as a matter of first impression in the circuit, the petitioner’s claim of
actual innocence was not an exception to the AEDPA one-year statute of limitations. Id.
at 1133.
As to equitable tolling, Petitioner argues that his original trial counsel gave him
bad advice on whether to plead guilty and that the trial court would not permit Petitioner
to fire his trial counsel or proceed in forma pauperis. While an “extraordinary” instance of
attorney failure can be grounds for equitable tolling, the attorney’s conduct must amount
to “far more than ‘garden variety’ or ‘excusable neglect.’” Holland v. Florida, 130 S.Ct.
at 2564. In addition, a petitioner must show a causal link between the acts of his trial
counsel and the untimeliness of his federal Petition. See Spitsyn v. Moore, 345 F.3d 796,
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799 (9th Cir. 2003).
In this case, none of the factual allegations cited by Petitioner affected his ability
to file a habeas corpus petition within one year after finality of his case (90 days after the
conclusion of his direct appeal). Because Petitioner has not shown any causal link
between these factual allegations and the late habeas corpus petition, this argument does
not support application of equitable tolling.
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
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

MEMORANDUM DECISION AND ORDER - 10

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.
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:
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1.

Petitioner’s Motion to Withdraw Motion to Expedite (Dkt. 17) is
GRANTED, and, as a result, Petitioner’s Motion to Expedite (Dkt. 9) is
DENIED as MOOT.

2.

Petitioner’s Motion Requesting Change of Respondent (Dkt. 10) is
DENIED. It appears that Respondent Johanna Smith is currently warden of
ISCI, where Petitioner resides, and Randy Blades, the proposed substitute
respondent, is warden of IMSI.

3.

Petitioner’s Motion in Support of Issuance of Subpoena (Dkt. 12) is
DENIED as MOOT because Petitioner has made no showing that any items
requested are pertinent to the timeliness question at issue.

4.

Petitioner’s Motion for Extension of Time to Respond to Motion to Dismiss
(Dkt. 18) is GRANTED. Petitioner’s Response (Dkt. 21) is deemed timely,
and has been considered by the Court.

5.

Petitioner’s Motion for Court to Forgo Formalities (Dkt. 20) is GRANTED
to the extent that the Court has considered and liberally construed all of
Petitioner’s filings in this case, whether overlength or not.

6.

Respondent’s Motion for Summary Dismissal (Dkt. 15) is GRANTED.
Petitioner’s Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED
with prejudice.

7.

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

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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 22, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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