Kimsey v. Bennett

Filing 66

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion for Equitable Estoppel 59 is DENIED. Respondent's Motion for Summary Dismissal 61 is GRANTED, and this entire action is DISMISSED with prejudice. Petitioner's Mot ion To Term Without Prejudice Above Stated Case 63 is DENIED. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO CHRISTOPHER JAY KIMSEY, Case No. 1:11-cv-00298-REB Petitioner, MEMORANDUM DECISION AND ORDER v. KENNETH BENNETT, Respondent. Pending before the Court is Petitioner Christopher Jay Kimsey’s Petition for Writ of Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal, seeking dismissal of the Petition with prejudice. (Dkt. 61.) Petitioner has also moved to dismiss this action, but he asks that the dismissal be without prejudice. (Dkt. 63.) Petitioner has also filed a Motion for Equitable Estoppel (Dkt. 59), in which Petitioner seeks a continuance. The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 19.) Having carefully 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 oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order granting Respondent’s Motion for Summary MEMORANDUM DECISION AND ORDER 1 Dismissal and dismissing this case with prejudice. BACKGROUND 1. State Court Proceedings Pursuant to a plea agreement, Petitioner pleaded guilty in the First Judicial District of the State of Idaho, in Kootenai County, Idaho, to aggravated assault on a law enforcement officer in violation of Idaho Code § 18-905. (State’s Lodging C-15 at 1.) In exchange for the guilty plea, the prosecutor dismissed a sentencing enhancement charge. (State’s Lodging A-5.) On January 14, 2009, Petitioner was sentenced to a unified sentence of six years in prison with two years fixed. (State’s Lodging A-6.) Petitioner did not appeal from his conviction or sentence. No earlier than August 8, 2011,1 Petitioner filed a state petition for postconviction relief. (State’s Lodging B-15 at 1-5.) On November 1, 2011, the state district court dismissed the petition as untimely. (Id. at 35-39.) Petitioner appealed, but the appeal was initially dismissed due to a procedural error by the Idaho Supreme Court. (Dkt. 37.) Petitioner’s postconviction appeal was later reopened on motion by the State. The Idaho Court of Appeals affirmed the trial court’s dismissal of Petitioner’s postconviction petition because the petition was not filed within Idaho’s one-year statute of limitations governing postconviction petitions—a determination not challenged by Petitioner during 1 Pursuant to both federal and Idaho state law, a pro se inmate’s postconviction or habeas petition is deemed filed on the date the petition is delivered to prison authorities for filing by mail, rather than the date it is actually received by the clerk of court. Houston v. Lack, 487 U.S. 266, 270-71 (1988); Munson v. State, 917 P.2d 796, 800 (Idaho 1996). MEMORANDUM DECISION AND ORDER 2 the appeal. (State’s Lodging C-15.) Petitioner filed a petition for rehearing, which was denied. (State’s Lodging C-16, C-17, & C-18.) Petitioner did not petition the Idaho Supreme Court for review, and the Idaho Court of Appeals issued its remittitur on May 6, 2013. (State’s Lodging C-19.) 2. Federal Procedural History Petitioner filed the instant federal habeas Petition, at the earliest, on June 7, 2011. (Dkt. 3.) This Petition is Petitioner’s fourth habeas corpus petition filed in this Court. See Kimsey v. Bennett, Case No. 1:10-cv-00544-CWD (voluntarily dismissed Jan. 14, 2011); Kimsey v. Blades, Case No. 1:11-cv-00046-REB (two petitions) (voluntarily dismissed July 5, 2011). The Court previously notified Petitioner that he would not be permitted to dismiss this Petition voluntarily without prejudice, but rather must pursue it to completion.2 (Dkt. 9, 16.) Petitioner asserts the following claims in his Petition: (1) that his Fifth Amendment rights were violated when certain statements that he made “to further investigations” were “misapplied to [his] prosecution”; (2) that he was deprived of his Sixth Amendment right to a jury trial because he waived that right under duress; and (3) that he did not receive a copy of the judgment of conviction and was not otherwise notified of his right to file a direct appeal. (Dkt. 3. at 2-3.) This action was stayed for a time to allow Petitioner to return to state court and has 2 For this reason, Petitioner’s request for dismissal without prejudice (Dkt. 63) will be denied. MEMORANDUM DECISION AND ORDER 3 since been reopened. The Court previously allowed Petitioner an opportunity to request that counsel be appointed to represent him. (Dkt. 37 at 4-5.) Petitioner elected to proceed without appointed counsel. (See Notice to Proceed with Continued Pro Se Counsel, Dkt. 40.) Respondent now seeks summary dismissal of the Petition. DISCUSSION Respondent contends that Petitioner’s claims are barred by the statute of limitations and are procedurally defaulted. (Dkt. 61-1.) The Court need not address Respondent’s procedural default argument. The Petition was filed after the one-year statute of limitations had already expired. See 28 U.S.C. § 2244(d). Because Petitioner (1) is not entitled to statutory tolling, (2) is not entitled to equitable tolling, and (3) has not made a colorable showing of actual innocence, the Court will dismiss the Petition with prejudice as untimely. 1. Standard of Law Governing Summary Dismissal Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”) authorizes the Court to summarily dismiss a petition for writ of habeas corpus or claims contained in the petition when “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” The Court takes judicial notice of the records from Petitioner’s state court proceedings, lodged by Respondent on February 28, 2012; August 21, 2012; September 4, 2012; and May 29, 2013. (Dkt. 22, 39, 41, 55.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, MEMORANDUM DECISION AND ORDER 4 551 (9th Cir. 2006). 2. Petitioner’s Claims Are Barred by the Statute of Limitations A. Standard of Law 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). Title 28 U.S.C. § 2244(d)(1) provides that the statute limitations period 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. Petitioner’s case involves subsection (d)(1)(A)—his conviction became final on the date of the conclusion of direct review or the expiration of the time for seeking such review. Direct review of a conviction includes the opportunity to file a petition for a writ MEMORANDUM DECISION AND ORDER 5 of certiorari in the United States Supreme Court. The Supreme Court has clarified application of § (d)(1)(A) as follows: For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the “conclusion of direct review”—when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the “expiration of the time for seeking such review”—when the time for pursuing direct review in this Court, or in state court, expires. Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012). Because Petitioner did not file a direct appeal, his conviction became final on February 25, 2009, when Idaho’s 42-day period for filing an appeal expired. See Idaho Appellate Rule 14(a). The one-year statute of limitations can be tolled (that is, suspended) under certain circumstances. First, AEDPA provides for tolling 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). A motion to reduce a sentence that is not a part of the direct review process and that requires reexamination of the sentence qualifies as a collateral review application that tolls the oneyear statute of limitations. Wall v. Kholi, 131 S. Ct. 1278, 1286-87 (2011). Thus, to the extent that a petitioner properly filed an application for postconviction relief or other collateral challenge in state court, the one-year federal limitations period stops running on the filing date of the state court action and resumes when the action is completed. However, any postconviction petition or other collateral proceeding that is untimely MEMORANDUM DECISION AND ORDER 6 under state law is not considered properly filed and thus does not toll the statute of limitation. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). Further, the time before a petitioner files an initial application for collateral review in state court cannot serve to toll the statute of limitation. Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (“AEDPA’s statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case ‘pending’ during that interval.”), abrogated on other grounds as stated in Nedds v. Calderon, 678 F.3d 777, 781 (9th Cir. 2012). And AEDPA “does not permit the reinitiation of the [federal] limitations period that has ended before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003). If, after applying statutory tolling, a petition is deemed untimely, a federal court can still consider the claims if the petitioner can establish that “equitable tolling” should be applied to toll the remaining time period. See Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002) (“[A] court must first determine whether a petition was untimely under the statute itself before it considers whether equitable tolling should be applied.”). The limitations period may be equitably tolled only under exceptional circumstances. “[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal MEMORANDUM DECISION AND ORDER 7 quotation marks omitted). To qualify for equitable tolling, a circumstance must have caused a petitioner to be unable to file his federal petition on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). In addition, the statute of limitations is subject to an “actual innocence” exception. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013). Actual innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998). If a petitioner “demonstrates that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner may . . . have his constitutional claims heard on the merits,” even if the petition is otherwise time-barred. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). B. Analysis of the Statute of Limitations as Applied To Petitioner’s Claims Petitioner’s conviction became final on February 25, 2009. Hence, absent tolling, the statute of limitations period expired on February 25, 2010. Petitioner filed his Petition in this Court, at the earliest, on June 7, 2011. See Houston, 487 U.S. at 270-72; Habeas Rule 3(d). Thus, his claims are barred by AEDPA’s one-year statute of limitation unless Petitioner establishes that he is entitled to statutory or equitable tolling, or that he is actually innocent. i. Statutory Tolling As described above, AEDPA’s one-year limitations period is tolled for all of the time “during which a properly filed application for State post-conviction or other MEMORANDUM DECISION AND ORDER 8 collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Petitioner filed his state postconviction petition on August 8, 2011; however, that date was over a year after AEDPA’s statute of limitations expired on February 25, 2010. Thus, statutory tolling is unavailable. See Ferguson, 321 F.3d 820, 822. Moreover, because the Idaho Court of Appeals held that the Petitioner’s state postconviction petition was untimely, that petition was not properly filed and thus cannot serve as a basis for statutory tolling in any event. Pace, 544 U.S. at 414. ii. Equitable Tolling Equitable tolling applies only if (1) the petitioner has pursued his rights diligently and (2) extraordinary circumstances stood in his way and prevented a timely filing. Holland, 560 U.S. at 649. “[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and alteration omitted). The measure of diligence required is “reasonable diligence,” not “maximum feasible diligence.” Holland, 560 U.S. at 653 (internal quotation marks omitted). “To determine if a petitioner has been diligent in pursuing his petition, courts consider the petitioner’s overall level of care and caution in light of his or her particular circumstances,” Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011), including whether the petitioner pursued his or her claims before the extraordinary circumstances came into existence, Roy v. Lampert, 465 F.3d 964, 972 (9th Cir. 2006). MEMORANDUM DECISION AND ORDER 9 Petitioner has not shown extraordinary circumstances that would justify the application of equitable tolling in this case. His filings are somewhat difficult to understand, and it appears that Petitioner is currently being held as a civilly committed detainee due to mental health issues. Even so, the Court can discern no evidence that those mental health issues were so severe during the statute of limitations period that Petitioner was rendered incapable of protecting his interests at that time by pursing habeas relief. Indeed, his previous two habeas corpus actions show that Petitioner was capable—despite any mental health problems—of pursuing federal habeas relief earlier on, yet Petitioner choose to voluntarily dismiss those actions. There is nothing to suggest that Petitioner did so because he was incapable of pursuing the actions more fully. Rather, Petitioner has chosen to dismiss (or attempt to dismiss) his habeas actions only after being notified by the Court of the potential timeliness and procedural default problems with his claims. Those decisions on his part suggest a full ascertainment and understanding of the issues at play, not an inability to comprehend the same. Petitioner has simply not met his burden of showing that extraordinary circumstances beyond his control prevented him from filing a timely habeas petition. See Ramirez, 571 F.3d at 998 (holding that equitable tolling was not appropriate because petitioner’s circumstances did not make it “impossible for him to file his petition in a timely manner”) (emphasis added) (internal quotation marks omitted). MEMORANDUM DECISION AND ORDER 10 iii. Actual Innocence Petitioner has not made a colorable showing of actual innocence. He states that he was “falsely charged,” but submits no evidence (or argument explaining the absence of such evidence) to support such a claim. (Dkt. 34-4 at 3.) Moreover, in response to Respondent’s Motion for Summary Dismissal, Petitioner states only that he was denied his Fifth Amendment rights “regarding testimony” and his right of “attorney/client privilege”; he makes no allegation that he is factually innocent. (Dkt. 65 & 65-1.) Therefore, the actual innocence exception is unavailable to Petitioner, and his Petition was not timely filed. CONCLUSION For the foregoing reasons, the Petition will be dismissed with prejudice as untimely.3 ORDER IT IS ORDERED: 1. Petitioner’s Motion for Equitable Estoppel (Dkt. 59) is DENIED. 2. Respondent’s Motion for Summary Dismissal (Dkt. 61) is GRANTED, and this entire action is DISMISSED with prejudice. 3. Petitioner’s Motion To Term Without Prejudice Above Stated Case (Dkt. 3 In addition to his habeas claims, Petitioner alleges in his filings that he is being denied timely access to appropriate medical treatment. This is a claim that cannot be brought in a habeas corpus action, but may be raised as a due process claim in a separate civil rights lawsuit under 42 U.S.C. § 1983. MEMORANDUM DECISION AND ORDER 11 63) is DENIED. 4. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a timely notice of appeal with the Clerk of Court. Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. DATED: September 22, 2014 Honorable Ronald E. Bush U. S. Magistrate Judge MEMORANDUM DECISION AND ORDER 12

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