Tunstall v. Wengler

Filing 17

MEMORANDUM DECISION AND ORDER granting 12 Motion for Summary Dismissal. Petitioner's Petition for Writ of Habeas Corpus is Dismissed with Prejudice. 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 jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DUB DEAN TUNSTALL,
Case No. 1:10-CV-00463-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIM WENGLER,
Respondent.

Pending before the Court is Respondent’s Motion for Summary Dismissal. (Dkt.
12.) Petitioner has filed a Response, and Respondent has filed a Reply. (Dkts. 14 & 15.)
Having reviewed the arguments of the parties, as well as the state court record, the Court
enters the following Order.
BACKGROUND
Petitioner pleaded guilty to and was convicted of one count of rape in the Fifth
Judicial District Court, in Twin Falls, Idaho. He received a unified sentence of 25 years,
with the first 18 years fixed. The judgment of conviction was entered on September 29,
2004. (State’s Lodging A-1, pp. 48-54.)
Petitioner pursued a direct appeal, arguing that his sentence was excessive. The
Idaho Court of Appeals heard Petitioner’s appeal, affirming the sentence. The Idaho

MEMORANDUM DECISION AND ORDER - 1

Court of Appeals denied Petitioner’s petition for review and issued its remittitur on
December 21, 2005. (State’s Lodgings B-1 to B-7.)
On August 1, 2005, in the midst of his direct appeal, Petitioner filed a state postconviction application, raising Fifth, Sixth, and Eighth Amendment claims. (State’s
Lodging C-1, pp. 27-33.) Petitioner’s application was dismissed by the state district court
on April 3, 2006. (Id., pp. 64-65.) Petitioner filed an untimely notice of appeal that was
dismissed by the Idaho Supreme Court. (State’s Lodging D-3.)The remittitur was issued
on August 15, 2006. (State’s Lodging D-4.)
After his direct appeal concluded, Petitioner had nothing pending in state court
until he filed a successive application for post-conviction relief on March 10, 2008.
(State’s Lodging C-1, pp. 103-112.) 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 successive post-conviction application was dismissed by the state
district court. (State’s Lodging C-1, pp. 177-208.) The Idaho Court of Appeals affirmed
dismissal. (State’s Lodging E-3.) The Idaho Supreme Court denied Petitioner’s petition
for review and issued its remittitur on August 24, 2010. (State’s Lodging E-6 & E-7.)

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).
MEMORANDUM DECISION AND ORDER - 2

Petitioner filed his Petition for Writ of Habeas Corpus in this Court on September
7, 2010 (mailbox rule).2 (Dkt. 3.) He brings claims that his counsel misled him about the
length of his sentence under a guilty plea and performed ineffectively regarding a
psychosexual evaluation ordered for sentencing.
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:
2

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).
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(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 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

MEMORANDUM DECISION AND ORDER - 4

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

Discussion
Petitioner’s federal statute of limitations began running 90 days after direct appeal

remittitur was issued (December 21, 2005 + 90 days = March 21, 2006), to account for
the time period during which Petitioner could have filed a petition for writ of certiorari in
the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999).
However, because Petitioner filed his post-conviction application during the pendency of
his direct appeal, his federal statute of limitations was immediately tolled. The tolling
continued while the action was pending in the state district court. On April 3, 2006, the

MEMORANDUM DECISION AND ORDER - 5

state district court dismissed the case, and Petitioner did not file a timely appeal.
Therefore, 42 days after dismissal, on May 15, 2006, the order of dismissal became final.3
Petitioner’s federal statute of limitations ran for one year, from May 15, 2006, to
May 15, 2007. Petitioner filed no state-law action that would have tolled the federal
statute during that time period. When Petitioner filed his successive state post-conviction
application on March 10, 2008, 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 allow his statute of limitations on this
claim to start 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 2006, and
that fact should serve to either restart the statute of limitations for that claim or 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, § 2244(d)(1)(C) (cited above) would not apply, because it is limited to decisions

3

Even if the Court counted the time during which the appeal was filed–through the date
the Idaho Supreme Court issued its remittitur in that case, on July 24, 2006–Petitioner’s federal
Petition would still be untimely. Because the 90-day extension period does not apply to postconviction relief actions, Petitioner’s one-year period would have begun running again. See Nino
v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999).
MEMORANDUM DECISION AND ORDER - 6

of the United States Supreme Court.4 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 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
4

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).

MEMORANDUM DECISION AND ORDER - 7

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).
Petitioner also argues that he was transferred from Idaho to an Oklahoma prison in
2007, “at which time he had no access to legal research material. It wasn’t until the first
part of 2008 before the petitioner had access to Idaho research material, where only then
did the Estrada case surface making him aware of State Courts holdings.” (Response,
Dkt, 14, p. 2.) In his successive state post-conviction application, Petitioner stated that he
became aware of Estrada, “due to information made available through the vast Legal
Library and legal assistance here at the facility in Oklahoma.” (State’s Lodging C-1, p.
105.)
The Estrada opinion was issued on November 24, 2006, and rehearing was denied
on January 22, 2007. Estrada, 149 P.3d at 833. Petitioner does not provide the specific
time frames of his transfer, but the approximate dates can be extrapolated from his state
pleadings and papers. On August 10, 2007, Petitioner filed a motion for transcripts in his
first post-conviction matter, indicating that he resided at a prison in Boise, Idaho. (State’s
Lodging C-1, p. 92.) When Petitioner filed his successive state post-conviction
application on March 10, 2008, his application indicated he was incarcerated in Sayre,
Oklahoma. (State’s Lodging C-1, p. 103.) Petitioner’s federal statute of limitations
expired on May 15, 2007, while Petitioner was still incarcerated in Boise, Idaho, where he
had the same access to AEDPA and Idaho case law as any other Idaho inmate. Therefore,

MEMORANDUM DECISION AND ORDER - 8

Petitioner has failed to show any causal connection between his transfer and his untimely
federal Petition.
Rather, Petitioner’s argument appears to be one that he was ignorant of Estrada
while housed in the Idaho prison because of a deficiency in the Idaho prison legal
resource center. Petitioner makes no argument that the Idaho legal resource center did not
have a copy of AEDPA, and, in particular, § 2244, the AEDPA statute of limitations
provision. Petitioner’s lack of knowledge of Estrada is not enough to warrant equitable
tolling. The United States Court of Appeals for the Ninth Circuit has held that ignorance
of the law alone is not an appropriate ground for equitable tolling. Rasberry v. Garcia,
448 F.3d 1150 (9th Cir. 2006); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999);
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000); Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000). As a result, this argument for tolling fails.
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.

MEMORANDUM DECISION AND ORDER - 9

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
debate whether (or, for that matter, agree that) the petition should have been resolved in a

MEMORANDUM DECISION AND ORDER - 10

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.
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
MEMORANDUM DECISION AND ORDER - 11

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.

Respondent’s Motion for Summary Dismissal (Dkt. 12) is GRANTED.
Petitioner’s Petition for Writ of Habeas Corpus (Dkt. 3) 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 22, 2011

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

MEMORANDUM DECISION AND ORDER - 12