Briggs v. Wengler
Filing
20
MEMORANDUM DECISION AND ORDER granting 16 Motion to Dismiss. Signed by Judge Larry M. Boyle. (Copy of this order and successive petitions form by dks) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TODD ROBERT BRIGGS,
Case No. 1:10-cv-00445-LMB
Petitioner,
MEMORANDUM DECISION
AND ORDER
v.
TIM WENGLER,
Respondent.
Pending before the Court is Respondent’s Motion to Dismiss. (Dkt. 16.) Petitioner
has filed his Response (Dkt. 18), and the Motion is now ripe for adjudication. Both
parties have consented to the jurisdiction of a United States Magistrate Judge to enter
final orders in this case. (Dkt. 5, 13.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having fully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that the decisional process would not be significantly aided by oral argument.
Therefore, in the interest of avoiding further delay, the Court shall decide this matter on
the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d).
Accordingly, the following Order is entered.
MEMORANDUM DECISION AND ORDER - 1
RESPONDENT’S MOTION TO DISMISS
1.
Background
Pursuant to a plea agreement, Petitioner pleaded guilty to and was convicted of one
count of first degree murder and two counts of aggravated battery in a state criminal
action in the Seventh Judicial District Court in Bonneville County, Idaho. (State’s
Lodging A-1, pp. 140-42.) He received sentences of twenty-five years to life on the
murder count, seven to fifteen years on the first aggravated battery count (to run
consecutively), and five to fifteen years on the second aggravated battery count (to run
concurrently). The judgment of conviction was entered on July 12, 2002. (Id.)
Petitioner filed a direct appeal challenging his sentences. (State’s Lodging B-1.)
The sentences were affirmed on appeal by the Idaho court of Appeals on May 15, 2003.
(State’s Lodging B-3.) Petitioner did not file a petition for review with the Idaho Supreme
Court.
Petitioner filed a post-conviction relief application on April 4, 2004, and it was
dismissed upon the state’s motion to dismiss on October 25, 2005. (State’s Lodging C-1.)
The Idaho Court of Appeals affirmed dismissal on February 28, 2007. (State’s Lodging
D-5.) Petitioner filed a petition for review, which was denied on July 30, 2007. (State’s
Lodgings D-9, D-11.)
Petitioner filed a first petition for writ of habeas corpus in federal court on
December 4, 2007 (first petition) (Briggs v. Smith, 1:07-cv-00510-EJL, Dkt. 3).
MEMORANDUM DECISION AND ORDER - 2
Respondent filed a motion to dismiss the first petition on untimeliness grounds, which
was granted by United States District Judge Edward J. Lodge. (Id., Dkt, 10, 12.)
Judgment was entered on July 15, 2008. (Id., Dkt. 13.) No appeal was filed.
While the first federal habeas corpus action was pending, on December 19, 2007,
Petitioner filed a second state post-conviction application. (State’s Lodging E-1.) Upon
the state’s motion to dismiss, the state district court dismissed the application. (Id.) The
Idaho Court of Appeals affirmed dismissal of the application, and the Idaho Supreme
Court denied review on June 4, 2010. (State’s Lodgings F-7, F-9.)
The second federal habeas corpus petition (the instant action) was filed on
September 1, 2010, reasserting the same three claims from Petitioner’s prior federal
habeas corpus action. Respondent filed a Motion to Dismiss the Petition on grounds that
it is a second or successive petition brought without authorization from the United States
Court of Appeals for the Ninth Circuit, and, alternatively, that it is untimely.
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
MEMORANDUM DECISION AND ORDER - 3
other court proceedings, including state courts. Fed. R. Evid. 201(b); Dawson v Mahoney,
451 F.3d 550, 551 (9th Cir. 2006).
Before an Idaho state prisoner can file a second or successive federal habeas
corpus petition challenging the same conviction or sentence as in his first habeas corpus
petition, he must first obtain authorization from the United States Court of Appeals for
the Ninth Circuit. 28 U.S.C. § 2244(b)(3)(A). In Tyler v. Cain, 533 U.S. 656 (2001), the
United States Supreme Court explained the criteria used to determine whether a “second
or successive petition” can proceed:
If the prisoner asserts a claim that he has already presented in a previous
federal habeas petition, the claim must be dismissed in all cases. 28 U.S.C.
§ 2244(b)(1). And if the prisoner asserts a claim that was not presented in a
previous petition, the claim must be dismissed unless it falls within one of
two narrow exceptions. One of these exceptions is for claims predicated on
newly discovered facts that call into question the accuracy of a guilty
verdict. § 2244(b)(2)(B). The other is for certain claims relying on new
rules of constitutional law. § 2244(b)(2)(A).
533 U.S. at 661-62.
Case law has further clarified that a habeas petition is considered a “second or
successive petition” only if the first petition was dismissed with prejudice, whether on
procedural grounds or on the merits of the claims. Slack v. McDaniel, 529 U.S. 473, 48586 (2000); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Henderson v. Lampert,
396 F.3d 1049 (9th Cir. 2005).
MEMORANDUM DECISION AND ORDER - 4
A federal district court may not, “in the absence of proper authorization from the
[Ninth Circuit], consider a second or successive habeas application.” Cooper v. Calderon,
274 F.3d 1270, 1274 (9th Cir. 2001) (internal quotation marks and citation omitted).
Accordingly, if this Court determines that the second petition meets the criteria for a
“second or successive petition” under the statute, this Court has no jurisdiction to
consider the petition. See id., 274 F.3d at 1274 (holding that district courts lack
jurisdiction to consider unauthorized successive petitions).
2.
Discussion
As the procedural history sets forth above, Petitioner has pursued one federal
habeas corpus petition to its conclusion. The first petition was dismissed on statute of
limitation grounds, which is deemed a decision on the merits that renders a successive
petition subject to the second or successive petitions rule in § 2244(b). McNabb v. Yates,
576 F.3d at 1030.
The first and second habeas corpus petitions challenge the same conviction, and
contain essentially the same claims: (1) existence of a conflict of interest amounting to
prejudice that arose from an allegation that Petitioner’s trial counsel worked under the
direct supervision in his office of the employer of the victim’s mother; (2) ineffective
assistance of trial counsel because he was not “death-penalty certified” and because
counsel failed to investigate Petitioner’s Zoloft use; and (3) a Confrontation Clause
MEMORANDUM DECISION AND ORDER - 5
violation based on the trial judge’s failure to allow Petitioner to confront witnesses
Beverly Park and David Doten in open court at the sentencing hearing. (Compare Case
No. 1:10-cv-00445-LMB, Briggs v. Wengler (second petition), Dkt. 2, pp. 2-3, with Case
No 1:07-cv-00510-EJL, Briggs v. Smith (first petition), Dkt. 3, pp. 2-3.) There are some
slight differences among the facts supporting these claims, as well as some differences
between “new claims” that Petitioner wishes to bring(even though such claims have not
been previously presented to the state courts), which are not relevant to the analysis of
whether Petitioner can proceed on his second petition.
Because Petitioner challenges the same convictions and sentences he challenged in
the first petition, he cannot file a second petition without authorization from the Ninth
Circuit Court of Appeals. No such authorization in the record is apparent, nor does
Petitioner assert that he obtained authorization in his Response to the Motion to Dismiss.
The Court is without jurisdiction to hear the merits of the claims. Because Petitioner
cannot proceed as a result of § 2244(b), the Court will not address Respondent’s
argument that Petitioner’s claims are untimely.
ORDER
IT IS ORDERED:
1.
Respondent’s Motion to Dismiss (Dkt. 16) is GRANTED. Petitioner’s
Petition is DISMISSED.
MEMORANDUM DECISION AND ORDER - 6
3.
The Clerk of Court shall provide Petitioner with a copy of the successive
petitions form to be filed with the United States Court of Appeals for the
Ninth Circuit.
DATED: February 1, 2012.
Honorable Larry M. Boyle
United States Magistrate Judge
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