Johnson v. Wengler et al

Filing 20

MEMORANDUM DECISION AND ORDER granting 9 Motion to Dismiss; granting 15 Motion to Strike; The Court will not grant a Certificate of Appealability in this case. Signed by Judge Edward J. Lodge. (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

JODY JOHNSON,
Case No. 1:11-cv-00171-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIMOTHY WENGLER, Warden, ICC,
Respondent.

INTRODUCTION
Pending before the Court are two motions filed by Respondent that are ripe for
adjudication in this federal habeas corpus case. 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
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 Court enters the following
Order.
BACKGROUND
In May 2000, Petitioner was convicted of first degree murder of Noreassa Huck
after a jury trial in the Fourth Judicial District Court in Ada County, Idaho. (State’s
MEMORANDUM DECISION AND ORDER - 1

Lodging A-1, p.85.) Judgment of conviction was entered on June 15, 2000. (Id., pp.8891.) Petitioner received a unified life sentence with forty-five years fixed. (Id.)
Petitioner filed a direct appeal, alleging that the jury verdict was not supported by
substantial evidence, and that the trial court’s sentence was excessive. (State’s
Lodging B-1.) The Idaho Court of Appeals affirmed Petitioner’s conviction and sentence
in a published opinion, concluding there was substantial and competent evidence for the
jury to find Petitioner guilty of first-degree murder, and finding that the trial court did not
abuse its sentencing discretion. (State’s Lodging B-4.) Petitioner filed a petition for
review (State's Lodging, B-2), but on January 22, 2002, the Idaho Supreme Court denied
Petitioner’s petition for review and issued the Remittitur. (State’s Lodgings B-7, B-8.)
More than seven years later, on May 22, 2009, Petitioner filed a petition and
affidavit for postconviction relief in state district court, alleging ineffective assistance of
trial counsel. (State’s Lodging C-1, pp.4-63.) Petitioner readily acknowledged that his
petition was untimely under Idaho law,1 but argued that “not being schooled in law and its
elements in Due Process” should excuse his untimely filing. (Id., p.9.) The district court
gave Petitioner notice of its intent to dismiss the postconviction petition because of his
untimely filing and failure to allege a valid tolling exception. (Id., pp.73-77, 94-96.) The
district court also appointed counsel to assist Petitioner in determining whether any valid
tolling exceptions applied. (Id., pp.94-96.) Thereafter, Petitioner’s newly appointed
1

See Idaho Code Ann. § 19-4902 (West 2012) (an application for post-conviction relief must be
filed “within one (1) year from the expiration of the time for appeal or from the determination of an
appeal or from the determination of a proceeding following an appeal, whichever is later.”)
MEMORANDUM DECISION AND ORDER - 2

counsel filed a “Notice of Non-Filing” with the trial court, wherein counsel declined to
file an amended petition on behalf of Petitioner because counsel could find no basis for
equitable tolling. (Id., pp.107-108.) On August 25, 2009, the district court dismissed
Petitioner’s petition for postconviction relief as untimely and failing to state any valid
claims that would entitle him to relief. (Id., pp.109-111.)
Petitioner appealed the district court’s dismissal of his postconviction petition, and
on September 3, 2009, the district court ordered the State Appellate Public Defender
(“SAPD”) to represent Petitioner in his appeal. (State’s Lodging C-1, pp. 117-118.)
However, on March 17, 2010, the SAPD filed a motion for leave to withdraw and to
suspend the briefing schedule because it was unable to identify a viable issue for appeal.
(State’s Lodging D-12.) The Idaho Supreme Court granted SAPD’s motion (State’s
Lodging D-15), so Petitioner continued his appeal pro se, contending that the district
court failed to recognize Petitioner’s constitutional rights (both state and federal) as a
valid basis for equitable tolling. (State’s Lodgings D-1, D-3.) The Idaho Court of Appeals
rejected Petitioner’s argument in an unpublished opinion dated November 30, 2010, and
affirmed the dismissal of Petitioner’s postconviction petition without reaching the merits
of Petitioner’s claims. (State’s Lodging D-4.) The Idaho Supreme Court subsequently
denied Petitioner’s separate petitions for rehearing and review, and issued the Remittitur
on January 25, 2011. (State’s Lodgings D-9, D-10, D-11.)
Petitioner then filed a Petition for Writ of Habeas Corpus in this Court on April 21,
2011, commencing these proceedings. (Dkt. 1.) Petitioner made the following two claims:
MEMORANDUM DECISION AND ORDER - 3

(1) the Idaho postconviction statute of limitations violates his state and federal
constitutional rights; and (2) ineffective assistance of trial counsel. (Id., p.2.) Pursuant to
Rule 4 of the Rules Governing Section 2254 Cases, Chief United States Magistrate Judge
Candy W. Dale preliminarily reviewed the Petition and on May 17, 2011, issued her
Initial Review Order. (Dkt. 4.) Judge Dale determined that the first claim was not
cognizable and would be dismissed in the final order because habeas corpus is not the
proper avenue to address alleged errors in a state’s postconviction review process. (Dkt.
4, pp.2-3.) As to the second and only remaining claim, Judge Dale permitted Petitioner to
proceed to the next step in this habeas proceeding so he could show proper exhaustion of
his state court remedies, or alternatively, a viable excuse for failure to do so. (Id.)
Pursuant to the terms of the Initial Review Order, Respondent filed a Motion for
Summary Dismissal (Dkt. 9), and Petitioner filed his Response to Motion of Summary
Dismissal Pursuant to: Initial Review Order; (6) (sic) (Dkt. 12) (hereinafter “Response”).
Respondent then filed a Reply Brief in Support of Respondent’s Motion for Summary
Dismissal (Dkt. 13). On March 8, 2012, Petitioner filed a “Rebuttle [sic] to Motion of
Respondents, Summary Dismissal Pursuant to Writ of Habeas” (Dkt. 14) (hereinafter
“Rebuttal”), to which Respondent filed a Motion to Strike Petitioner’s Rebuttal (Dkt. 15.)

MEMORANDUM DECISION AND ORDER - 4

Judge Dale has since reassigned the matter to the undersigned District Judge
because not all parties had consented to a Magistrate Judge exercising jurisdiction under
28 U.S.C. § 636(c). (Dkt. 19.)
The Court has reviewed the motions, responses, and the record, and it is now
prepared to issue its ruling.
RESPONDENT’S MOTION TO STRIKE PETITIONER’S REBUTTAL
Respondent has filed a Motion to Strike Petitioner’s Rebuttal because Petitioner
failed to obtain leave of the Court to file such a pleading as required by the Court’s Initial
Review Order, and because such a pleading is not contemplated by the applicable rules.
(Dkt. 15, p. 2.) Indeed, in its Initial Review Order the Court ordered the parties to file
certain pleadings in this habeas proceeding with corresponding deadlines, and then further
ordered that: “No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first obtaining leave of
Court.” (Dkt. 4, p.9.) The Local Rules, the Federal Rules of Civil Procedure, and the
Rules Governing Section 2254 Cases do not specify or allow for the filing of a sur-reply
or rebuttal to a motion for summary dismissal in a federal habeas case. The Court agrees
that Petitioner filed his Rebuttal in violation of this Court’s Order and that the applicable
rules do not specify or allow for such a rebuttal, so Respondent’s Motion to Strike will be
granted.

MEMORANDUM DECISION AND ORDER - 5

RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
Respondent filed a Motion for Summary Dismissal and requests that the Court
dismiss the Petition because: (1) the Petition is untimely under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”); (2) Petitioner’s first claim is not cognizable in a
federal habeas corpus petition; and (3) Petitioner’s second claim is procedurally
defaulted. (Dkt. 9, p.2.)
1. Summary Dismissal
Rule 4 of the Rules Governing Section 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. When a court is considering a motion to dismiss, it may take
judicial notice of facts outside the pleadings. Mack v. South Bay Beer Distributors, 798
F.2d 1279, 1281 (9th Cir. 1986).2 A court may look beyond the complaint to matters of
public record, and doing so does not convert a motion for summary dismissal into a
motion for summary judgment. Id. Accordingly, the Court shall take judicial notice of
those portions of the state court record lodged by Respondent.

2

abrogated on other grounds by Astoria Federal Sav. and Loan Ass’n v. Solimino, 501 U.S. 104,
111 S. Ct. 2166 (1991).
MEMORANDUM DECISION AND ORDER - 6

2. Statute of Limitations
A. Standard of Law
The current Petition is governed by the provisions of the AEDPA, enacted in 1996.
Under the AEDPA, a one-year period of limitation applies to an application for a writ of
habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year period begins to run from the date
of one of four triggering events, as specified in 28 U.S.C. § 2244(d)(1)(A)-(D). The most
common triggering event occurs on the date upon which the conviction became final,
either after direct appeal or after the time for seeking an appeal expired. In addition,
because the process of direct review includes the right to petition the United States
Supreme Court for a writ of certiorari, the Ninth Circuit has held that a conviction is not
final until the 90-day period for filing the writ of certiorari has expired, even if the
petition for certiorari is not filed. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
The statute provides tolling (suspending) of the one-year period for all of “[t]he
time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. §
2244(d)(2). This is called “statutory tolling.”
For statute of limitations purposes, a judgment becomes final when the Idaho
Court of Appeals issued its remittitur, marking the expiration of the time for filing a
petition for review with the Idaho Supreme Court. See Hemmerle v. Schriro, 495 F.3d
1069, 1073-74 (9th Cir. 2007); Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).
If, after applying statutory tolling, a petitioner’s petition is deemed untimely, a
MEMORANDUM DECISION AND ORDER - 7

federal court can hear the claims only if the petitioner can establish that “equitable
tolling” should be applied. 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. In order to qualify for
equitable tolling, the extraordinary circumstance must have caused Petitioner to be unable
to file his federal petition in time. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
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, no. 3 (9th Cir. 1999). Ignorance of
the law is not a basis for equitable tolling. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th
Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is not, by itself, an
extraordinary circumstance warranting equitable tolling”).
B. Discussion
Petitioner’s judgment of conviction became final on January 22, 2002, when the
Idaho Supreme Court denied his petition for review and issued the Remittitur. (State’s
Lodgings, B-7, B-8.) Petitioner’s one year statute of limitations period began 90 days
after that date, or on April 22, 2002, when the period for filing a petition for writ of
certiorari expired. That means the limitations period expired April 22, 2003. Petitioner
did not file his Petition until April 21, 2011, almost 8 years after the expiration of the
limitations period. The Petition must be dismissed unless Petitioner has established that
statutory or equitable tolling should apply.
MEMORANDUM DECISION AND ORDER - 8

The Court has carefully reviewed the record and pleadings in this matter and finds
no basis for either tolling option. Statutory tolling is not available to Petitioner because he
did not commence any postconviction proceedings until May 22, 2009, well after the
AEDPA limitations period expired.3 (State’s Lodging C-1, p.4.) In addition, the
postconviction petition was deemed untimely under applicable state law, thus
disqualifying it as a “properly filed” petition that would entitle Petitioner to statutory
tolling under 28 U.S.C. § 2244(d)(2).
Nor has Petitioner presented any facts to establish a basis for equitable tolling.
Petitioner seemingly claims in his Response that equitable tolling should apply because
he was “under psychological emotional stress, believing the Courts are extremely
prejudiced against him, not knowing the process of or being schooled in law, indigent not being able to hire an Attorney.” (Dkt. 12, pp. 1-2.) Ignorance of the law, however, is
not a basis for equitable tolling, Raspberry, 448 F.3d at 1154, and Petitioner failed to
show or argue that his “psychological emotional stress” made it impossible for him to file
his Petition on time. See Spitsyn, 345 F.3d at 799. In fact, Petitioner acknowledged in his
Response that his 7 year delay in pursuing relief in his case resulted from a “jail house
lawyer” encouraging him to do so, not because he was suddenly without psychological

3

As previously stated in the Initial Review Order, 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
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).
MEMORANDUM DECISION AND ORDER - 9

emotional stress. (Dkt. 12, p.2)
Petitioner’s pleadings are otherwise devoid of any arguments or reasons
demonstrating he was 1) “pursuing his rights diligently” in the 8 years between the
expiration of the limitations period and the filing of his Petition; and 2) that some
extraordinary circumstances caused Petitioner to be unable to file his Petition in time. See
Pace, 544 U.S. at 418; Spitsyn, 345 F.3d at 799. Because Petitioner waited too long to file
his Petition and failed to establish a sufficient reason for the delay, the Petition will be
summarily dismissed with prejudice.
3. Petitioner’s Additional Arguments Against Dismissal
Petitioner includes two additional arguments in his Response to Respondent’s
Motion for Summary Dismissal: 1) Petitioner is actually innocent; and 2) the AEDPA’s
one year statute of limitations violates the Suspension Clause of the United States
Constitution, as well as other general constitutional rights of the Petitioner. (Dkt. 12, pp.
5-13.) The Court is not persuaded.
The Suspension Clause argument is without merit. See, e.g., Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that the limitations period “is not a
per se violation of the Suspension Clause” and “does not render federal habeas an
inadequate or ineffective remedy”). It is true, however, that the Ninth Circuit Court of
Appeals has recently held that a compelling showing of “actual innocence” can satisfy an
equitable exception that would excuse a petitioner’s failure to file his habeas petition in a
timely manner. Lee v. Lampert, 653 F.3d 929, 934-35 (9th Cir. 2011). But to qualify for
MEMORANDUM DECISION AND ORDER - 10

this exception, the petitioner has the burden “to produce sufficient proof that of his actual
innocence to bring him ‘within the narrow class of cases . . . implicating a fundamental
miscarriage of justice.’” Id. at 938. This means that the petitioner must come forward with
“new reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at trial.” Id. at
938 (citing Schlup v. Delo, 513 U.S. 298, 324 (1995). He must also establish that “in light
of all the evidence, including evidence not introduced at trial, it is more likely than not
that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” See
id.
Petitioner has not proffered any new reliable evidence that would satisfy this
demanding standard, as he seems to allege in a conclusory manner that he acted in selfdefense. A habeas proceeding is not a proper forum in which to re-litigate the case that
has already been tried. Instead, “[w]hen confronted with a challenge based on trial
evidence, courts presume the jury resolved evidentiary disputes reasonably so long as
sufficient evidence supports the verdict.” House v. Bell, 547 U.S. 518, 539 (2006).
For these reasons, the Court finds Petitioner’s additional arguments to be
unavailing.
4. Respondent’s Additional Arguments for Dismissal
Respondent’s Motion includes two additional arguments to support summary
dismissal of the Petition: 1) Petitioner’s first claim that the state’s postconviction statute
of limitations violated his state and federal constitutional rights is not cognizable in a
MEMORANDUM DECISION AND ORDER - 11

federal habeas corpus petition; and 2) Petitioner’s second claim of ineffective assistance
of counsel is procedurally defaulted. (Dkt. 9-1, pp.8-15.) This Court agrees with Judge’s
Dale’s conclusion in the Initial Review Order that the first claim challenges a state court
postconviction review process that is not cognizable in a habeas corpus proceeding. (Dkt.
4, pp. 2-3.) The first claim is dismissed on the alternative basis that it is not cognizable.
Because the entire Petition is subject to dismissal as untimely, the Court finds it
unnecessary to reach Respondent’s procedural default argument as to Petitioner’s second
claim.
CERTIFICATE OF APPEALABILITY
In the event Petitioner files a notice of appeal from the Order and Judgment in this
case, and in the interest of conserving time and resources, the Court now evaluates the
claims within the Petition for suitability for issuance of a certificate of appealability
(COA), which is required before a habeas corpus appeal can proceed. 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.

MEMORANDUM DECISION AND ORDER - 12

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
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. Id. When a court has
dismissed the petition or claim on the merits, the petitioner must show that “reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Id. 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 the Petition on procedural grounds, and the first
claim has been alternatively dismissed on the merits. 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
MEMORANDUM DECISION AND ORDER - 13

to proceed further. As a result, 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 may 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.

Respondent’s Motion to Strike Petitioner’s Rebuttal (Dkt. 15) is
GRANTED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 9) is GRANTED and
the Petition (Dkt. 1) 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 Memorandum Decision and Order, the record in this
case, and Petitioner’s notice of appeal, to the United States Court of
Appeals for the Ninth Circuit.

MEMORANDUM DECISION AND ORDER - 14

SO ORDERED.

DATED: September 26, 2012

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 15