Hanslovan v. Blades

Filing 28

MEMORANDUM DECISION AND ORDER granting 12 Motion to Seal Document; granting 13 Motion for Leave to File Excess Pages; granting 14 Motion to Dismiss; denying 16 Motion to Appoint Counsel; granting 24 Motion to Take Judicial Notice. The 1 P etition for Writ of Habeas Corpus is dismissed. A certificate of appealabilty will not issue in this case. 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LARRY HANSLOVAN,
Case No. 1:11-cv-00562-CWD
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.

RANDY BLADES,
Respondent.

Pending before the Court in this habeas corpus matter is Respondent’s Motion for
Summary Dismissal. (Dkt. 14.) The parties have consented to a United States Magistrate
Judge conducting all proceedings, in accordance with 28 U.S.C. § 636(c). (Dkt. 9.) The
Court finds that the parties have adequately stated the facts and legal arguments in their
briefs and that the decisional process would not be significantly aided by oral argument.
To avoid delay, the Court will decide this matter on the briefs and record without oral
argument. D. Idaho L. Civ. R. 7.1.
After considering the parties’ arguments, the Court will grant Respondent’s
Motion, and the Petition will be dismissed as untimely.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The Idaho Court of Appeals recited the relevant events in this case as follows:
In early March of 2008, Larry Dwight Hanslovan and his
girlfriend, Barbara Lynn Dehl, sold nearly an ounce of
methamphetamine to an undercover police officer and a
confidential informant. Two weeks later, in an unrelated
incident, Hanslovan and Ronald John Huntsman, Sr., forced
two people into a car at gunpoint. The two victims were taken
to Dehl’s home, bound with packing tape, and beaten in an
attempt to obtain confessions regarding items missing from
Dehl’s residence. John Albert Schmeichel was eventually
implicated in the theft. Hanslovan and Huntsman took one of
the victims with them to find Schmeichel. Huntsman then shot
and killed Schmeichel on the return trip while Hanslovan
drove the car. The two remaining victims were eventually
released.
(State’s Lodging B-4, pp.1-2.)
A grand jury indicted Hanslovan (“Petitioner”) and Barbara Dehl on felony
charges of trafficking in methamphetamine and two counts of kidnapping, one for each
kidnapping victim (Kyle Quinton and B.D, a minor female), but neither Petitioner nor
Dehl were charged with Schmeichel’s murder. (State’s Lodging A-1, pp. 11-13.) The
grand jury also indicted Petitioner with two counts of the use of a deadly weapon in the
kidnapping incident. (Id.) The drug trafficking count was severed and amended to a
charge of delivery of a controlled substance, and both Petitioner and Dehl eventually pled
guilty to the amended charge. (State’s Lodging A-4, pp. 9-35.) The kidnapping counts
and the weapons charges were set for trial.
The prosecutor eventually offered a “package plea agreement” to Petitioner and

MEMORANDUM DECISION AND ORDER - 2

Dehl. In exchange for their guilty pleas to one count of second-degree kidnapping, the
prosecutor would dismiss all other counts and would limit her sentencing
recommendation to eighteen years for Petitioner and to eight years for Dehl, with their
sentences for kidnapping to be served concurrently with the their sentences for delivery of
a controlled substance. (State’s Lodging A-6.) Under this arrangement, both defendants
had to plead guilty and, if either defendant withdrew his or her plea, the other defendant’s
guilty plea would be set aside. (Id.) Petitioner and Dehl took the offer and each pled
guilty to second-degree kidnapping. (State’s Lodging A-4, pp. 36-76.) Petitioner chose to
plead guilty to the count alleging that he had kidnapped Kyle Quinton. (Id.)
Before sentencing, Petitioner moved to withdraw his guilty plea, alleging that he
had been coerced into pleading guilty, in part, because of a secret deal that he and his
attorney had made with Dehl and her counsel. (State’s Lodging A-1, pp. 103-04.) To add
an incentive for Petitioner to accept the prosecutor’s package offer, according to
Petitioner, Dehl’s brother promised to put money into his prison commissary account and
to provide work for him and the use of a vehicle when he was released from prison (Id.)
At the hearing on his motion, Petitioner denied that he had kidnapped Quinton and said
that he had admitted the kidnapping when he entered his guilty plea only because his
attorney instructed him to do so. (State’s Lodging A-4, p. 84.)
The district court denied the motion. Although it was troubled by the alleged secret
deal between the parties and their attorneys, and it remarked that they might have
perpetrated a fraud on the court, the presiding judge concluded that Petitioner nonetheless
MEMORANDUM DECISION AND ORDER - 3

entered his guilty plea knowingly and voluntarily. (State’s Lodging A-1, pp. 33-34.) The
court also found no other “just cause” to allow the withdrawal of the guilty plea. (Id.)
At sentencing, the trial court followed the plea agreement and sentenced Petitioner
to eighteen years in prison, with ten years fixed, for second-degree kidnapping, and to a
concurrent term of fifteen years, with five years fixed, for delivery of a controlled
substance. (Id. at 4.) The court later denied Petitioner’s motion under Idaho Criminal Rule
35 to reduce his sentences. (Id. at 4.)
On appeal, the Idaho Court of Appeals affirmed the district court’s order denying
Petitioner’s motion to withdraw his plea and its order denying the Rule 35 motion. (Dkt.
1-1, p. 9.) The Idaho Supreme Court declined to review that decision, and it issued a
Remittitur on December 29, 2008. (Dkt. 1-1, p. 14.)
Five months later, on June 5, 2009, Petitioner filed a second motion to withdraw
his guilty plea, this time claiming that Kyle Quinton had come forward to claim that
Petitioner did not “kidnap” or “threaten” him in any way. (State’s Lodgings C-1, C-2.)
Petitioner supported his motion with a handwritten affidavit from Quinton. (State’s
Lodging C-2.)
The district court did not act on the new motion to withdraw for nearly two years,
until early 2011. It then appointed counsel for Petitioner, held a hearing, and denied relief
on the ground that it had lost jurisdiction to amend the judgment after the Idaho Supreme
Court issued its Remittitur on direct appeal in late 2008, before the motion to withdraw
was filed. (State’s Lodgings C-14, C-15.) The trial court entered its order of dismissal on
MEMORANDUM DECISION AND ORDER - 4

July 25, 2011. (State’s Lodging C-14.)
Petitioner next filed a state habeas corpus petition in the district court, relying on
the same Quinton affidavit to support his claims. (State’s Lodging D-4.) The court
concluded that Petitioner was improperly attempting to use the remedy of habeas corpus
as a substitute for a direct appeal or post-conviction relief, and it dismissed the petition.
(State’s Lodging D-7, p. 2.)
Petitioner did not appeal, choosing instead to raise the same claims in a new
habeas corpus petition, filed as an original action in the Idaho Supreme Court. (State’s
Lodging E-1.) After ordering a response from the State, the Idaho Supreme Court
dismissed the petition, ruling that an original action was improper because Petitioner had
failed to appeal from the district court’s denial of relief on the same claims and that the
district court’s order was “res judicata.” (State’s Lodging E-5.)
On November 15, 2011, Petitioner lodged his Petition for Writ of Habeas Corpus
in this Court. (Dkt. 1.) In the Petition, he raises the following three claims: (1) he is
actually innocent of “the crime” (apparently referring to the kidnapping conviction); (2)
he was deprived of his Sixth Amendment right to the effective assistance of counsel
because his “attorney was aware that the statement of the victim was coerced”; and (3) he
was deprived of due process of law under the Fourteenth Amendment because the “Ada
County Prosecutor coerced a statement from a victim, knew the statement was false, and
continued to use the statement even though they knew it was false.” (Dkt. 1, pp. 1-3.)
This Court conducted an initial review of the Petition and ordered the Clerk to
MEMORANDUM DECISION AND ORDER - 5

serve it on Respondent. (Dkt. 6.) Respondent has since filed a Motion for Summary
Dismissal, contending that Petitioner filed his Petition after the expiration of the one-year
statute of limitations for initiating habeas corpus actions and, alternatively, that none of
Petitioner’s claims were fairly presented to the Idaho Supreme Court and must be
dismissed as procedurally defaulted. (Dkt. 12.)
Petitioner has submitted a Motion for Counsel (Dkt. 16), a Motion to Take Judicial
Notice (Dkt. 24), and his Response to Respondent’s Motion to Dismiss (Dkt. 14). These
matters are now fully briefed, and the Court is prepared to issue its ruling.1
PETITIONER’S MOTION FOR THE APPOINTMENT OF COUNSEL
Petitioner requests the Court to appoint counsel to assist him in this case. There is
no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501
U.S. 722, 755 (1991). A habeas petitioner does have a right to counsel, as provided by
rule, if an evidentiary hearing is required. See Rule 8(c) of the Rules Governing Section
2254 Cases.
In addition, the Court may exercise its discretion to appoint counsel for an indigent
petitioner in any habeas case where required by the interests of justice. 28 U.S.C. §
2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on
Petitioner’s ability to articulate his claims in light of the complexity of the legal issues

1

Respondent’s Motion to File Oversize Brief in support of his Motion for Summary Dismissal
will be granted, and the brief is properly filed. Also, Respondent’s Motion to Seal the lodging of the
grand jury transcript will be granted in light of the confidential nature of grand jury proceedings under
Idaho state law. The grand jury transcript will remain sealed.
MEMORANDUM DECISION AND ORDER - 6

and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983).
Here, an evidentiary hearing will not be necessary, and Petitioner has shown an
ability to articulate his claims and present his opposition to Respondent’s dispositive
motion quite well for a pro se litigant. He has not otherwise convinced the Court that the
appointment of counsel is necessary to further the interests of justice, and the motion will
be denied.
MOTION TO TAKE JUDICIAL NOTICE
Petitioner next asks the Court to take judicial notice of a new affidavit from Kyle
Quinton – dated August 7, 2012 – that Petitioner has lodged with the Court. (Dkt. 24.)
This request will be denied in part and granted in part.
Under Rule 201 of the Federal Rules of Evidence, the Court may take judicial
notice of facts that are “not subject to reasonable dispute” when they are either (a)
“generally known within the trial court’s territorial jurisdiction” or (b) “can be accurately
and readily determined from sources whose accuracy cannot reasonably be questioned.”
Id. The credibility and reliability of Kyle Quinton’s factual assertions in his recent
affidavit regarding Petitioner’s involvement in these crimes are certainly not beyond
reasonable dispute. As such, the Court will not take judicial notice of those assertions as
established facts.
However, the Court has the discretion to expand the existing record with new
material for the limited purpose of resolving Respondent’s present Motion for Summary
MEMORANDUM DECISION AND ORDER - 7

Dismissal. Rule 7 of the Rules Governing Section 2254 Cases. This is so because the
Court is not limited to the record that was before the state court when assessing threshold
procedural matters like those at issue here. See, e.g., Cristin v. Brennan, 281 F.3d 404,
412 (3rd Cir. 2002).
Petitioner argues that Quinton’s two affidavits contain compelling evidence of his
actual innocence, which can be a potential equitable reason to excuse an untimely filing
or to overlook a petitioner’s failure to properly exhaust his habeas claims in the state
courts. See Lee v. Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011) (statute of limitations);
see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (procedural default). The Court
will, therefore, exercise its discretion under Rule 7 to expand the record with Quinton’s
November 2012 Affidavit for the limited purpose of resolving Respondent’s dispositive
motion. And, the Court will discuss the statements in Quinton’s affidavits in greater detail
in the next section of this Memorandum Decision.
RESPONDENT’S MOTION FOR SUMMARY DISMISSAL
Respondent relies on two theories to support his motion to dismiss. First, he argues
that the one-year statute of limitations expired in this case on January 18, 2010, and that
Petitioner filed his Petition nearly two years out of time in November of 2011. (Dkt. 14-1,
p. 8.) Respondent next contends that Petitioner did not properly exhaust his state court
remedies as to any claim that he has raised, and because it is too late to do so now, the
claims are procedurally defaulted.
For the reasons that follow, the Court is persuaded by Respondent’s first argument.
MEMORANDUM DECISION AND ORDER - 8

The Petition will be dismissed on that basis, and the Court will not reach the procedural
default issue.
1.

Standard of Law
The Petition is governed by the provisions of the Anti-Terrorism and Effective

Death Penalty Act (AEDPA). Under 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 is the date upon which the
judgment became final, either after the direct appeal or after the time for seeking an
appeal expired. 28 U.S.C. § 2244(d)(1)(A).
The statute provides tolling (suspending) of the one-year limitations 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 known as “statutory tolling.”
A state court application for post-conviction or other collateral review is “properly
filed,” and tolls the federal limitations period, only when “its delivery and acceptance are
in compliance with applicable [state] laws and rules governing filing.” Artuz v. Bennet,
531 U.S. 4, 8 (2000). An application that is dismissed as untimely was never “properly
filed,” and the limitations period is not suspended during the time between the petitioner’s
submission of the application in the state court and the state court’s order of dismissal.
Pace v. DiGuglielmo, 544 U.S. 408, 414-15 (2005).
MEMORANDUM DECISION AND ORDER - 9

The limitations period may also be tolled for equitable reasons when extraordinary
circumstances outside of the petitioner’s control prevented him from filing on time
(known as “equitable tolling”). See, e.g., Shannon v. Newland, 410 F.3d 1083, 1089-90
(9th Cir. 2005). A litigant seeking equitable tolling bears the burden of establishing (1)
that he has been pursuing his rights diligently and (2) that some extraordinary
circumstance stood in his way. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010).
The United States Court of Appeals for the Ninth Circuit has recently recognized
that equitable tolling may also be based on a credible showing of “actual innocence.” Lee
v. Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011). In Lee, the Circuit Court adopted the
legal standard for assessing such claims from Schlup v. Delo, 513 U.S. 298, 324 (1995).
Under that standard, 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.” Schlup, 513 U.S. at 324. The
petitioner bears the burden of demonstrating 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.” Id. at 327; see also House v. Bell,
547 U.S. 518, 539 (2006). The actual innocence standard is demanding and permits
review only in “‘extraordinary’” cases. Schlup, 513 U.S. at 327 (citation omitted).
With these standards in mind, the Court now turns to the arguments in the present
case.

MEMORANDUM DECISION AND ORDER - 10

2.

The Limitations Period Was Not Statutorily Tolled
The parties agree that Petitioner’s judgment became final on January 18, 2009,

after the Idaho Supreme Court issued its Remittitur on direct appeal and the 90 daydeadline to file a petition for a writ of certiorari in the United States Supreme Court had
expired. (Dkt. 14-1, p. 8; Dkt. 18, p. 2.) The one-year limitations period started to run the
next day, on January 19, 2009. 28 U.S.C. § 2244(d)(1)(A).
The period then ran for 137 days before Petitioner filed his second motion to
withdraw his guilty plea on June 5, 2009. (State’s Lodging C-1.) That motion sat idle on
the court’s docket without any activity for nearly two years, before the court appointed
counsel for Petitioner, held a hearing, and then dismissed the motion because it “lost
jurisdiction in 2008 after the Remittitur by the Idaho Appellate Court was entered.”
(State’s Lodgings C-14, C-15.) Petitioner did not appeal from that decision.
Respondent argues that because the state court found that Petitioner had not filed
his motion in a timely manner and that it had lost jurisdiction in 2008, the motion was
never “properly filed” such that AEDPA’s statute of limitations could be tolled under 28
U.S.C. § 2244(d)(2). In other words, the limitations period continued to run while the
motion to withdraw was pending, and it expired on January 18, 2010, well before the
Petitioner filed his Petition in federal court. The Court agrees.
The state court’s ruling fell squarely in line with Idaho law. Specifically, several
years earlier, the Idaho Supreme Court held that a district court loses jurisdiction to
consider a motion to withdraw a guilty plea filed under Idaho Criminal Rule 33(c) upon
MEMORANDUM DECISION AND ORDER - 11

the “expiration of the time for appeal or by affirmance of the judgment.” State v. Jakoski,
79 P.3d 711, 714 (Idaho 2003). The Idaho Supreme Court further determined that a Rule
33(c) motion could not be liberally construed as an application for post-conviction,
because “[i]t would be too much of a stretch to hold that a motion filed in a criminal case
can be considered as a pleading commencing civil litigation.” Id.
As in Jakoski, Petitioner relied exclusively on Rule 33(c) to support his motion to
withdraw, which he filed over five months after the judgment became final upon the
conclusion of his direct appeal. Accordingly, the state district court’s decision that the
motion was untimely, and that it lacked jurisdiction, flowed directly from Jakoski.
Respondent is correct that Petitioner did not submit his motion “in compliance with
applicable laws and rules governing filing,” meaning that it was never “properly filed”
under state law. Artuz v. Bennet, 531 U.S. 4, 8 (2000); see also Pace v. DiGuglielmo, 544
U.S. 408, 414-15 (2005) (following Artuz to hold that an untimely post-conviction action
is not “properly filed”). Because the motion was not properly filed, and because Petitioner
did not have any other properly filed collateral actions pending during that same time
period, Petitioner’s situation does not qualify for statutory tolling under § 2244(d)(2). As
a result, AEDPA’s one-year clock continued to run, expiring on January 18, 2010, and
Petitioner’s two state habeas corpus actions could not breathe new life into a limitations
period that already had expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.
2003).
Absent equitable tolling, the Petition in this case was filed nearly two years out of
MEMORANDUM DECISION AND ORDER - 12

time.
3.

Petitioner Has Not Established that He is Entitled to Equitable Tolling
Equitable tolling is a narrow and demanding exception that requires a petitioner to

bear the burden of showing (1) that he has been pursuing his rights diligently and (2) that
some extraordinary circumstance stood in his way. Holland v. Florida, 130 S.Ct. 2549,
2560 (2010).
Petitioner argues that it would be fundamentally unfair not to toll the limitations
period in his case. He contends that he should not be penalized for the state district
court’s lengthy delay in taking up his second motion to withdraw his guilty plea.
Although unstated, Petitioner seems to imply that a quicker resolution by the state court
would have allowed him to have filed his federal habeas petition sooner, and that the state
court’s delay was an extraordinary circumstance beyond his control.
The Court is not persuaded by Petitioner’s argument for two reasons. First, to be
entitled to equitable tolling, a habeas petitioner must have exercised reasonable diligence
throughout the entire time period that he seeks to have tolled. Pace v. DiGuglielmo, 544
U.S. 408 (2005) (“[a] petitioner’s lack of diligence precludes equity’s operation.”). Here,
Petitioner has alleged no facts that might establish diligence; he apparently did not inquire
about the status of his motion to withdraw, or submit any new filings, until he requested
the appointment of counsel in January of 2011. A reasonably diligent petitioner would
have followed-up long before then.
Second, and more important, the United States Supreme Court already has
MEMORANDUM DECISION AND ORDER - 13

addressed and rejected a similar argument. In Pace v. DiGuglielmo, the petitioner pointed
out that a state prisoner who is “trying in good faith to exhaust state remedies may litigate
in state court for years only to find out at the end that he was never properly filed, and
thus that his federal habeas petition is time barred.” 544 U.S. at 416 (internal quotations
marks omitted). Pace claimed that such a result would be unfair to a prisoner who was
attempting to comply with another AEDPA requirement – state court exhaustion – before
asking for federal habeas relief. The Supreme Court was unconvinced, finding that a
prisoner “might avoid this predicament, however, by filing a ‘protective’ petition in
federal court and asking the federal court to stay and abey the federal habeas proceedings
until state remedies are exhausted.” Id. (citing Rhines v. Weber, 544 U.S. 269, 278
(2005)). That finding has relevance in the case at hand, because the risk that the district
court eventually would find that it lacked jurisdiction to consider Petitioner’s motion to
withdraw his guilty plea was considerable in light of the Jakoski rule. Yet Petitioner did
not file a “protective petition” in federal court to obtain an earlier filing date or seek a
stay while he attempted to complete his state court collateral actions.
Next, relying on two affidavits from Quinton, Petitioner claims that his failure to
comply with the statute of limitations should be disregarded because he is actually
innocent of the crime of kidnapping. Specifically, he contends that the Quinton affidavits
prove that Quinton “was not kidnapped by Petitioner; [sic] but instead that the Petitioner
probably saved his life.” (Dkt. 18, p. 5.) After reviewing the affidavits and the record, this
Court does not find that Petitioner has stated a compelling claim that meets the narrow
MEMORANDUM DECISION AND ORDER - 14

actual innocence standard.
As an initial matter, Quinton’s credibility can reasonably be questioned. See
Schlup v. Delo, 513 U.S. 298, 331-32 (1995) (noting that courts assessing actual
innocence claims may “consider how the timing of the submission and the likely
credibility of the affiants bear on the probable reliability of that evidence”). Quinton had a
longstanding and close relationship with Petitioner; he has described Petitioner as a
“friend of the family,” unlike Ronald Huntsman, Jr., or Barbara Dehl, whom he did not
know well. (State’s Lodging A-2, p. 19.) Consistent with that, Quinton’s father testified at
the sentencing hearing that Petitioner “treat[ed] [Kyle Quinton] like a son,” spent time
with him, and even took him on vacations. (State’s Lodging A-4, p. 219.) Moreover,
Quinton has since been convicted of several crimes and is now serving a prison sentence.
See www.accessidaho.org/public/corr/. These circumstances undermine Quinton’s
trustworthiness as an impartial witness.
More importantly, Quinton’s new statements simply do not make a prima facie
case of Petitioner’s actual innocence. Instead, they amount to a conclusory assertion or an
opinion that Petitioner did not commit the crime of kidnapping, without specific facts that
objectively would support that assertion. Kidnapping is defined under Idaho law, in
relevant part, as: “[s]eiz[ing], confin[ing], inveigl[ing] or kidnap[ing] another, with intent
to cause him, without authority of law, to be secretly confined or imprisoned within this
state, or to be sent out of this state, or in any way held to service or kept or detained

MEMORANDUM DECISION AND ORDER - 15

against his will.” Idaho Code § 18-4501(1).2 A review of the record shows that the
evidence was more than sufficient to support Petitioner’s guilt as to that crime.
In his grand jury testimony, Quinton testified that he was awakened by Petitioner
and Huntsman while he was sleeping at a house in Boise. (State’s Lodging A-2, p. 23.)
According to Quinton, Petitioner was holding a .38 caliber handgun, Huntsman punched
Quinton in the face, and Petitioner and Huntsman then forced Quinton and his
companion, B.D., to go to a house in Nampa. (State’s Lodging A-2, pp. 23-24.) Quinton
felt that he had no choice but to leave Boise and go with Huntsman and Petitioner. (Id. at
25-26.) Once at the Nampa home, Quinton and B.D. were beaten, tied to chairs, and, at
one point, Petitioner held a hacksaw to B.D.’s leg while Huntsman yelled at them to
confess to having stolen some of Barbara Dehl’s property. (Id. at 30-31.) Quinton and
B.D. conceded that Petitioner was eventually responsible for releasing them to a motel in
Boise, where he warned them to “be careful” because Huntsman was “looking for you
guys.” (Id. at 44, 77.)
In addition to the grand jury testimony, Petitioner also made incriminating
statements under oath at his change of plea hearing. Although he denied that he had a
handgun, he admitted that Huntsman had brandished one and that Petitioner assisted
Huntsman in taking Quinton to Nampa against his will. (State’s Lodging A-4, pp. 57-58.)
He agreed that Quinton would have felt “coerced and forced” by his actions in joining

2

Because the State did not allege that Petitioner had taken Quinton for ransom, or with the intent
to commit a sexual crime, the charge was kidnapping in the second degree. Idaho Code § 18-4503.
MEMORANDUM DECISION AND ORDER - 16

them. (Id. at 59.)
Before sentencing, Quinton submitted a written statement to the Court, which was
included in the Presentence Investigation Report. His statement was similar to his grand
jury testimony, although in his presentence statement, he claimed that Huntsman had the
handgun instead of Petitioner and that “if it wasn’t for [Petitioner], Ron would have killed
[B.D.] and me.” (State’s Lodging A-7, p. 7.) But in a follow-up interview with the
presentence investigator, Quinton admitted that his written statement was not “completely
factual” because, contrary to what he had written, Petitioner did, in fact, have the gun. (Id.
at 7.)
This record provides a strong factual basis that Petitioner “seized or confined”
Quinton and caused him to be “secretly confined, imprisoned, or detained” against his
will. This is true regardless of whether Petitioner had the gun or Huntsman had the gun,
because Petitioner knew that force was being used in either case, and he further admitted
to the trial court that he assisted in making Quinton go to Nampa, where he continued to
be detained. That Petitioner’s actions may have prevented Huntsman from killing Quinton
or B.D., or that, days later, Petitioner helped Quinton and B.D. “escape” and warned them
about Huntsman, is immaterial to the kidnapping that already had occurred.
Against this backdrop, nothing in either of Quinton’s post-judgment affidavits
materially undercuts Petitioner’s conviction. In his 2007 Affidavit, Quinton states that “at
no time did [Petitioner] kidnap me, nor did I feel threatened by [Petitioner] or his actions
on the day in question.” (Dkt. 1-3, p. 7.) He further claims that “it was a direct result of
MEMORANDUM DECISION AND ORDER - 17

[Petitioner’s] actions that I am alive today.” (Id.) In his August 2012 Affidavit, he
reiterates that he “was not kidnapped by [Petitioner],” that he was “forced, or compelled
to give testimony . . . under threat of being prosecuted,” and that for many years he has
“lived in torment because of the false testimony that [he] gave during the original
proceedings in State Court in this case.” (Dkt. 24, August 7, 2012 Quinton Aff., pp. 1-2.)
In neither of these affidavits, however, does Quinton indicate which part of his
testimony was false. He also has failed to set out any facts showing what Petitioner
allegedly did or did not do on the night of the kidnapping and the days that followed. He
does not claim, for instance, that Petitioner was absent when he and B.D. were taken from
the house in Boise and transported to Nampa, or that Petitioner was absent at the house in
Nampa when they were bound and beaten. Nor does he state that, even if Petitioner were
present, Petitioner did not participate or assist in any of the activities that resulted in
Quinton believing that he was being detained against his will.
Rather than comprising “new” evidence, Quinton’s statements are more or less in
line with what already was known about Petitioner’s role; namely, that Petitioner may
have been a moderating presence among other much more aggressive and unstable actors,
but he assisted Dehl and Huntsman in bringing Quinton and B.D. to Nampa and detaining
them against their will to “investigate” whether they had stolen Dehl’s property.
Petitioner admitted as much under oath at his change of plea hearing. Quinton’s personal
belief that Petitioner did not kidnap him because he thinks that Huntsman and Dehl were
more at fault does not change the evidentiary calculus in a material way.
MEMORANDUM DECISION AND ORDER - 18

Petitioner’s burden is a heavy one. It is not sufficient for him to raise some doubt
that did not exist before. Instead he must establish that it is more likely than not that no
reasonable juror would now vote to find him guilty. Schlup, 513 U.S. at 327. Given the
strength of the evidence and the conclusory nature of Quinton’s more recent statements,
the Court concludes that Petitioner has failed to carry his burden. Similarly, the Court
does not find that further evidentiary development or an evidentiary hearing on this
question is necessary, because Petitioner has not alleged facts that, if developed and
proven to be true, would establish that “it is more likely than not that no reasonable juror
would have found [him] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 324.
Based on the foregoing, the Court concludes that the Petition is untimely under 28
U.S.C. § 2244(d) without a showing of statutory or equitable tolling that would save it
from dismissal. Respondent’s Motion for Summary Dismissal will be granted.
CERTIFICATE OF APPEALABILITY
In the event Petitioner files a timely notice of appeal, the Court must on its own
initiative evaluate this case for suitability of a certificate of appealability (“COA”). See
28 U.S.C. § 2253(c); Rule 11 of the Rules Governing Section 2254 Cases.
A habeas petitioner cannot appeal unless a COA has issued. 28 U.S.C. § 2253. A
COA may issue only when the petitioner “has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing can be established by
demonstrating 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 were
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“adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
This Court does not believe that reasonable jurists would debate its determination
that the Petition in this case is untimely without a showing of statutory or equitable
tolling. The Court will not issue a COA, though Petitioner is advised that he may still
seek one in the Ninth Circuit Court of Appeals pursuant to Rule 22 of the Federal Rules
of Appellate Procedure and Local Ninth Circuit Rule 22-1. To do so, he must first file a
timely notice of appeal in this Court.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion to Seal (Dkt. 12) is GRANTED.

2.

Respondent’s Motion to File Oversize Brief (Dkt. 13) is GRANTED.

3.

Petitioner’s Motion for Counsel (Dkt. 16) is DENIED.

4.

Petitioner’s Motion to Take Judicial Notice of Affidavit of Kyle Quinton
(Dkt. 24), construed as a motion to expand the record to include Quinton’s
August 7, 2012 Affidavit to support Petitioner’s Response to Respondent’s
Motion to Dismiss, is GRANTED, but consideration of the Affidavit has
been limited to that purpose.

5.

Respondent’s Motion for Summary Dismissal (Dkt. 14) is GRANTED. The
Petition for Writ of Habeas Corpus is dismissed.

6.

A certificate of appealabilty will not issue in this case. If Petitioner files a

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timely notice of appeal, and not until such time, the Clerk of Court shall
forward a copy of the notice of appeal, together with this Order, to the
Ninth Circuit Court of Appeals. The district court’s file in this case is
available for review online at www.id.uscourts.gov.
DATED: February 4, 2013

Honorable Candy W. Dale
United States Magistrate Judge

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