Cardona v. Wengler et al

Filing 21

MEMORANDUM DECISION AND ORDER granting 12 Motion for Summary Judgment; dismissing 3 Petition for Writ of Habeas Corpus. A certificate of appealabilty will not issue 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HECTOR M. CARDONA,
Case No. 1:11-cv-00651-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

TIMOTHY WENGLER,
IDAHO ATTORNEY GENERAL
LAWRENCE G. WASDEN,
Respondents.

Before the Court in this habeas corpus matter is Respondents’ Motion for
Summary Dismissal. (Dkt. 12.) 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 Respondents’
Motion, and the Petition will be dismissed as untimely.
BACKGROUND
Hector Cardona (“Petitioner”) pled guilty in state district court to one count of
trafficking in a controlled substance, and he was sentenced to life in prison with the first
seven years fixed. (Petition, Dkt. 3, p. 1.) Judgment was entered on January 7, 2009, and
Petitioner did not file a direct appeal. (Id. at 2.)

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Over a year later, on February 18, 2010, Petitioner submitted an application for
post-conviction relief in the state district court, alleging that his sentence was excessive
and that he had been deprived of his constitutional right to the effective assistance of trial
counsel on several grounds.1 (State’s Lodging A-1, pp. 2-7.) The district court dismissed
the application summarily, the Idaho Court of Appeals affirmed, and the Idaho Supreme
Court declined to review the case. (State’s Lodging A-1, p. 35; State’s Lodgings B-4, B7.) The Remittitur was issued on December 9, 2011. (State’s Lodging B-8.)
On December 21, 2011, Petitioner lodged a Petition for Writ of Habeas Corpus
with this Court (filing date per the “mailbox rule”). (Dkt. 1, p. 8.) In his Petition, he
claims that his Sixth Amendment right to the effective assistance of counsel was violated
because his trial counsel (a) erroneously informed him that he would receive no more
than 15 years in prison if he pled guilty, and (b) failed to present relevant mitigating
evidence at the sentencing hearing. (Dkt. 3, pp. 6-7.)
United States Magistrate Judge Ronald E. Bush conducted an initial review of the
Petition and ordered the Clerk of Court to serve it on Respondents. (Dkt. 6.) Respondents
have 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. (Dkt. 12.) Petitioner has submitted an Objection to Respondents’ Motion
for Summary Dismissal (Dkt. 19), which the Court will deem timely filed.
1

Petitioner is entitled to the benefit of the prison “mailbox rule,” meaning that the state postconviction petition is deemed to have been filed when Petitioner gave it to prison officials for mailing.
See, e.g., Noble v. Adams, 676 F.3d 1180, 1182 (9th Cir. 2012).
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The Court is now fully informed in these matters, and it is prepared to issue its
ruling.
STANDARD OF LAW
The Petition in this case 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 oneyear 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 in state court, either after the direct appeal has concluded 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.”
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).

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With these standards in mind, the Court turns to the arguments in the present case.
DISCUSSION
The parties agree that Petitioner’s judgment was entered in the state district court
on January 7, 2009. Under Idaho law, Petitioner then had 42 days after judgment in which
to file a direct appeal. See Idaho Appellate Rule 14. Petitioner did not file a direct appeal,
and under ordinary circumstances the judgment would have become final at the end of the
42-day period, on February 18, 2009.
Respondents challenge that calculation, however. They assert that the judgment
was final immediately after it was entered on January 9 because Petitioner waived his
right to appeal as part of his plea agreement with the State. Respondents suggest that as a
result of Petitioner’s waiver, there was no possibility that the appellate process could even
begin. The Court is not persuaded. Respondents have offered no authority, and the Court
is unaware of none, to support their position that a defendant’s waiver of appellate rights
in a plea agreement automatically cuts off his or her ability to even seek appellate review
within 42 days. The Court is instead persuaded by Petitioner’s view, which is that “[i]f his
waiver was proper, the appeal may not have been heard, but the waiver did not affect
appellate timeliness.” (Dkt. 19, p. 10 n.1.) Therefore, the judgment became final in this
case 42 days after it was entered, on February 18, 2009, and AEDPA’s one-year statute of
limitations started to run the next day.2
2

The Court agrees with Respondents, however, that Petitioner is not entitled to an additional 90
days of tolling based on the time to seek review in the United States Supreme Court because he did not
file a direct appeal and there was no appellate decision over which to seek Supreme Court review.
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The limitations period ran unabated until Petitioner filed his state petition for postconviction relief on February 18, 2010. (State’s Lodging A-1, p. 7.) The statute of
limitations was then statutorily tolled during the time that the post-conviction action was
pending in state court, until the Idaho Supreme Court issued its Remittitur on December
9, 2011.
At that point, 364 days of the federal limitations period had already expired, and
Petitioner had, at best, one day in which to get to federal court. Instead, he waited almost
another two weeks, until December 21, 2011, to place his Petition in the prison mail
system. Unless he can establish equitable tolling, the Petition must be dismissed as
untimely.
Equitable tolling is a narrow and demanding exception that requires a petitioner to
bear the burden of showing that he has been pursuing his rights diligently but that some
extraordinary circumstance beyond his control stood in his way. Holland v. Florida, 130
S.Ct. 2549, 2560 (2010). “[T]he threshold necessary to trigger equitable tolling [under
AEDPA] is very high, lest the exceptions swallow the rule.” Spitsyn v. Moore, 345 F.3d
796, 799 (9th Cir. 2003) (citation omitted). Petitioner has not carried that heavy burden
here.
Petitioner claims that “the ‘extraordinary circumstances’ at issue involve an
attorney’s failure to satisfy professional standards of care.” (Dkt. 19, p. 10.) Throughout

Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007).
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his argument, however, Petitioner mixes general allegations related to his trial counsel’s
supposed inattention and ineffectiveness during the plea and sentencing process with
allegations of neglect by attorneys after he had been sentenced and judgment had been
entered. The former allegations go to the merits of his claims and are not causally related
to why Petitioner was unable to file his federal Petition on time. But the latter allegations
implicate attorney mistakes in assisting Petitioner in getting to federal court, which, under
very limited circumstances, can be a reason to equitably toll the limitations period.
Specifically, in Holland v. Florida, the United States Supreme Court recognized
that “extraordinary” attorney misconduct in state and federal post-conviction matters may
warrant equitable tolling. 130 S.Ct. 2549, 2564; accord Spitsyn v. Moore, 345 F.3d 796,
801 (9th Cir. 2003) (finding “sufficiently egregious” attorney misconduct to warrant
tolling). While the Supreme Court did not set out a standard to assess what amounts to
“extraordinary” misconduct, it noted the longstanding rule that garden variety negligence
or excusable neglect, such as a miscalculated filing deadline, are not sufficient. Id. at
2564; see also Lawrence v. Florida, 549 U.S. 327, 336 (2007) (rejecting the petitioner’s
contention that “his counsel’s mistake in calculating the limitations period entitle[d] him
to equitable tolling.”).
The facts in Holland illustrate the rule. There, an attorney, Collins, was appointed
to represent a death-sentenced defendant in state and federal post-conviction matters. 130
S.Ct. at 2555. The petitioner alleged that Collins eventually failed to answer his letters or
to otherwise communicate with him, and, despite his repeated urging, failed to calculate
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the federal statute of limitations deadline or to file a timely petition. Id.
Recognizing that these facts likely went beyond ordinary negligence, the Supreme
Court summed up the attorney’s errors as follows:
Collins failed to file Holland’s federal petition on time despite
Holland’s many letters that repeatedly emphasized the importance of
his doing so. Collins apparently did not do the research necessary to
find out the proper filing date, despite Holland's letters that went so
far as to identify the applicable legal rules. Collins failed to inform
Holland in a timely manner about the crucial fact that the Florida
Supreme Court had decided his case, again despite Holland’s many
pleas for that information. And Collins failed to communicate with
his client over a period of years, despite various pleas from Holland
that Collins respond to his letters.
Holland, 130 S.Ct. at 2564. Essentially, Collins had abandoned his client during the very
representation that he had been appointed to complete, and he presented an outside
obstacle to the state prisoner filing his federal petition on time.
Here, in contrast to those facts, Petitioner asserts only vaguely that he was unable
to get information about his case from the Canyon County Public Defender’s Office,
which had represented him during his plea and sentencing proceedings, after he had been
sentenced and judgment was entered. It appears that Canyon County’s contract for public
defense services was awarded to a new firm during that time frame, resulting in a
transition period, and that the attorneys with the original firm that had represented
Petitioner may not have responded to his requests. (State’s Lodging A-1, p. 3.) But unlike
the attorney in Holland, the Canyon County Public Defender’s Office did not continue to
represent Petitioner in state post-conviction or federal habeas matters. Moreover, an

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attorney with the new firm responded promptly to Petitioner’s letter on January 20, 2010,
and advised him to file his state post-conviction matter quickly because he likely had one
year and 42 days from the entry of the January 7, 2009, entry of judgment to do so.
(State’s Lodging A-1, p. 9.) Petitioner followed that advice, and his post-conviction
petition was timely.
To the extent that any duty of professional representation remained to Petitioner
after judgment was entered, Petitioner’s allegations are more in line with garden variety
attorney neglect or negligence rather than showing the type of extraordinary attorney
misconduct that might warrant equitable tolling of the limitations period. That is, nothing
that the Canyon County Public Defender’s Office did or did not do, according to
Petitioner’s allegations, was so egregious that it could be said to have prevented him from
filing a federal habeas petition on time. While Petitioner contends that his ability to obtain
information from his legal file was thwarted, the factual information on which he has
based his claims of ineffective assistance of trial counsel were well known to him and
were offered in support of his post-conviction and, later, in support of his federal habeas
action. In addition, ignorance or lack of knowledge of the legal system is not an
extraordinary circumstance that would warrant equitable tolling. See 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”).

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For all of these reasons, the Court concludes that the Petition was filed after the
statute of limitations expired. Accordingly, Respondents’ Motion will be granted, and this
case will be dismissed.
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
“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 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.

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ORDER
IT IS ORDERED:
1.

Respondents’ Motion for Summary Dismissal (Dkt. 12) is GRANTED.

2.

The Petition for Writ of Habeas Corpus is DISMISSED.

3.

A certificate of appealabilty will not issue in this case. If Petitioner files a
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 12, 2013

Honorable Edward J. Lodge
U. S. District Judge

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