Mowrey v. Smith
Filing
15
MEMORANDUM DECISION AND ORDER granting 10 Motion to Dismiss. Petitioner's Petition for Writ of Habeas Corpus is dismissed with prejudice. 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 jm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DANIEL MOWREY,
Case No. 1:10-CV-00389-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
WARDEN JOHANNA SMITH,
Respondent.
Pending before the Court in this habeas corpus action is Respondent’s Motion for
Summary Dismissal. (Dkt. 10.) Petitioner has filed his Response. (Dkt. 13.) 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’ briefing, the record in this case, and the lodged state court record, the Court enters
the following Order.
BACKGROUND
Petitioner pleaded guilty to and was convicted of four counts of lewd conduct with
a minor in a state criminal action in the First Judicial District Court in Shoshone County,
Idaho. He received sentences of five years fixed with life indeterminate on each count,
with the fixed portions of each sentence to run consecutively. (State’s Lodging A-2, p.
94.) The judgment of conviction was entered on March 15, 2002. (State’s Lodging A-1,
Register of Actions, p. 3A.)
MEMORANDUM DECISION AND ORDER - 1
No direct appeal was filed, but Petitioner filed a post-conviction petition on March
6, 2003 (mailbox rule).1 (Petitioner’s Response, Dkt. 13, p. 2.) The Register of Actions
for Petitioner’s 2003 case shows that the case was filed by the Clerk of the Shoshone
County District Court on March 10, 2003, a public defender was appointed on March 19,
2003, a State’s motion for summary disposition was filed on September 10, 2003, and an
order of dismissal and final judgment were entered on January 8, 2004.2
Petitioner alleges that he did not appeal the dismissal because a prison paralegal
told him it would be futile. (Petitioner’s Response, Dkt. 13, p. 2.) Several years elapsed
where Petitioner had nothing pending in state court that was related to the conviction and
sentences at issue in this habeas corpus matter.
In 2006, a decision was issued by the Idaho Supreme Court, Estrada v. State, 149
P.3d 833 (Idaho 2006), that caused a flurry of state post-conviction and federal habeas
corpus petitions. In Estrada, 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 838.3
On April 2, 2007 (mailbox rule), Petitioner tried to take advantage of Estrada by
filing a Rule 35 motion to correct an illegal sentence in the state district court. (State’s
Lodging A-1, pp. 2-6.) Petitioner contended that his sentence was illegal because it was
based on “illegally gained information from psychosexual evaluation and presentence
1
See Houston v. Lack, 487 U.S. 266 (1988) (a legal document is deemed filed on the date
a prisoner delivers it to the prison authorities for filing by mail, rather than the date it is actually
filed with the clerk of court).
2
See www.idcourts.us/repository/caseHistory.
3
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).
MEMORANDUM DECISION AND ORDER - 2
reports.” (Dkt. 3, p. 4.) Petitioner’s motion was denied by the state district court, and, on
appeal, the decision was affirmed by the Idaho Court of Appeals. Petitioner’s petition for
review was denied by the Idaho Supreme Court on July 31, 2008. (State’s Lodgings B-1
to B-8.)
While the Rule 35 appeal was pending, Petitioner filed a successive postconviction application in state court on May 5, 2008. That application was summarily
dismissed by the state district court. The Court of Appeals affirmed dismissal on April 16,
2010, holding that Petitioner’s claim was subject to dismissal under Kriebel v. State, 219
P.23 1204, 1207 (Idaho Ct. App. 2009) (determining that Estrada did not announce a
new, retroactively-applicable rule). Petitioner’s petition for review was denied by the
Idaho Supreme Court on May 26, 2010. (State’s Lodgings C-1 through D-8.)
MOTION TO DISMISS
1.
Standard of Law Governing Summary Dismissal and Timeliness
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
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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. §
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 a federal statute of limitations has expired, it cannot be reinstated
or resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d
820, 822 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the
MEMORANDUM DECISION AND ORDER - 4
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).
2.
Discussion of Timeliness
Because Petitioner did not file a direct appeal after judgment was entered on
March 15, 2002, his judgment became final 42 days later, on April 26, 2002. 28 U.S.C.
§ 2244(d)(1)(A). Petitioner’s federal habeas corpus statute of limitations began running
on that day, and would have expired one year later, on April 26, 2003, but for the filing of
his post-conviction relief application on March 6, 2003, that tolled the federal statute of
limitations. At that time, Petitioner’s federal statute had run for 314 days, leaving 51 days
remaining.
Judgment in the post-conviction case was entered on January 8, 2004. Petitioner
had 42 days to appeal under Idaho Appellate Rule 14, but did not, making his judgment
final on February 19, 2004. The statute of limitations started to run again on February 20,
2004, and it expired 52 days later, on April 12, 2004 (a Monday).
Three years elapsed before Petitioner’s next filing, the April 2, 2007 Rule 35
motion based on Estrada. Although a motion for reduction of sentence qualifies as a
collateral review petition that serves to toll the habeas corpus statute of limitations,4
because the Rule 35 motion was filed after expiration of the statute of limitations, it had
no tolling effect. As set forth above, a new collateral relief proceeding cannot restart a
statute of limitations once it has expired.
4
See Wall v. Kholi, 131 S.Ct. 1278 (2011).
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The Court has considered whether Estrada might trigger the running of a new
statute of limitations. Title 28 U.S.C. § 2244(d)(1) provides that the statute of limitations
runs from the latest of any of the following 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.
Petitioner’s argument most closely resembles Subsection (C); however, it is an
imperfect match because Petitioner is relying on an Idaho Supreme Court case that was
not given retroactive effect,5 not upon a United States Supreme Court case that was given
5
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
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retroactive effect. No other subsection applies to trigger a new statute of limitations under
the facts asserted in the Petition. Hence, the Court concludes that the Petition is untimely.
3.
Discussion of Equitable Tolling
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. 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).
Petitioner argues here that his original trial counsel failed to file a Rule 35 motion
for leniency or a notice of appeal after judgment was entered in his case, and his postconviction counsel never contacted Petitioner about the 2003 post-conviction matter.
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.
MEMORANDUM DECISION AND ORDER - 7
However, Petitioner fails to show how these omissions caused him to miss his federal
habeas corpus statute of limitations. Petitioner has alleged no facts showing that he tried
to file a timely federal habeas corpus action between 2002 and 2004, but was thwarted by
either counsel. Rather, it appears that Petitioner’s first attempt to file a federal habeas
corpus action was after the Estrada case was issued in 2006, many years after Petitioner’s
counsels’ alleged omissions. Because Petitioner has not shown any causal link between
his counsels’ alleged failures and the late habeas corpus petition, this argument does not
support application of equitable tolling.
Petitioner also argues that he was advised by a prison paralegal to bring his
Estrada claim in a Rule 35 motion. However, because Petitioner’s federal statute of
limitations had already expired in 2004, Petitioner fails to show any causal link between a
paralegal’s advice in 2006 and the untimeliness of his federal habeas corpus petition.
Petitioner also argues that he could not have brought his federal habeas corpus
petition on the Estrada issue prior to 2006 when the psychosexual evaluation issue was
actually decided. However, that is not the case. Petitioner could have raised the same
issue raised in Estrada in his own case in a timely post-conviction action, but he did not
do so.
Petitioner has pointed to no set of facts that occurred during his statute of
limitations time period (between 2002 and 2004) that would qualify as grounds for
equitable tolling. Therefore, because the Petition is untimely, it must be dismissed.
4.
Conclusion
Petitioner’s federal habeas corpus statute of limitations expired in 2004. The Idaho
Supreme Court’s 2006 Estrada decision did not serve as a basis to begin a new federal
MEMORANDUM DECISION AND ORDER - 8
habeas corpus statute of limitations. Neither Petitioner’s Rule 35 motion, nor Petitioner’s
successive post-conviction action, restarted the already-expired statute of limitations.
While this outcome may seem unfair to Petitioner, it is important to note that this Court is
granted only that authority Congress has seen fit to give under the habeas corpus statute.
In other words, because Petitioner’s “new” claim does not fit within the parameters of 28
U.S.C. § 2244(d)(1), the claim is untimely, and this Court cannot hear the merits of the
case. As a result, Petitioner’s Petition for Writ of Habeas Corpus is untimely, and because
Petitioner has not shown adequate grounds for application of equitable tolling, the Court
does not reach Respondent’s procedural default argument but will dismiss the Petition
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
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).
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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.
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.
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ORDER
IT IS ORDERED:
1.
Respondent’s Motion for Summary Dismissal (Dkt. 10) is GRANTED.
Petitioner’s Petition for Writ of Habeas Corpus is DISMISSED with
prejudice.
2.
The Court will not grant a certificate of appealability in this case. If
Petitioner files a notice of appeal, the Clerk of Court is directed to forward a
copy of this Order and Petitioner’s notice of appeal, together with the
district court’s case file, to the United States Court of Appeals for the Ninth
Circuit.
DATED: June 23, 2011
Honorable Candy W. Dale
United States Magistrate Judge
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