Storm v. Reinke et al

Filing 24

MEMORANDUM DECISION AND ORDER,Respondents' Motion for Extension of Time to File Answer or Pre-Answer Motion (Dkt. 8 ) is GRANTED. The Motion for Summary Dismissal (Dkt. 10 ) is considered timely. Respondents' Motion for Summary Dismissal (Dkt. 10 ) is DENIED. Petitioner's Request to Pursue Discovery (Dkt. 16 ) and Motion for Discovery (Dkt. 17 ) are DENIED. Respondent shall file an answer within 90 days after entry of this Order. Petitioner shall file a reply which shall be filed and served within 30 days after service of the answer. Respondent has the option of filing a sur-reply within 14 days after service of the reply. Petitioner's Request for Status Conference (Dkt. 15 ) is DENIED, and Petitioner's Request for Scheduling Order (Dkt. 15 ) is GRANTED. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICKIE STORM,
Case No. 1:12-cv-00001-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

BRENT REINKE, et al,
Respondent.

Petitioner Rickie Storm filed a Petition for Writ of Habeas Corpus challenging his
revocation of parole. (Dkt. 1, 6.) Respondent Brent Reinke filed a Motion for Summary
Dismissal, asserting that the claims are untimely. (Dkt. 10.) Petitioner filed a Response to
the Motion, and Respondent filed a Reply. (Dkt. 12, 13.) Also pending are several other
motions filed by the parties. (Dkt. 8, 14, 16, 17.)
Having reviewed the record and the parties’ briefing, the Court concludes that oral
argument is unnecessary. Accordingly, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

REVIEW OF MOTION FOR SUMMARY DISMISSAL
1.

Standard of Law Governing Motions to Dismiss
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).
2.

Background
Petitioner was convicted of two counts of grand theft and one count of possession

of a controlled substance in 2004. (State’s Lodging A-1, p. 53.) He was sentenced to
unified terms of 14 years on the grand theft counts, and 7 years on the possession count.
(Id.) The Petition for Writ of Habeas Corpus filed in this action challenges a parole
revocation. The relevant dates and events are as follows:
August 26, 2008

Petitioner was granted parole. (State’s Lodging A-1, pp. 5354.)

January 16, 2009

Petitioner’s parole officer, Darwin Cameron, filed a report of
parole violation alleging multiple parole violations and
recommending revocation of parole and incarceration on the
remainder of Petitioner’s sentences. (Id., pp. 56-64.)

April 8, 2009

Parole hearing officer Christine Lewis conducted a parole
violation hearing. Petitioner was found guilty of several

MEMORANDUM DECISION AND ORDER - 2

violations, and others were dismissed. Lewis recommended
that parole be revoked. (Id., pp. 67-82.)
July 14, 2009

The Idaho Commission of Pardons and Parole (ICPP) held a
parole revocation hearing, adopted the findings of the hearing
officer, revoked parole, and scheduled the next parole hearing
for July 2014. (Id., pp. 83-91.)

February 24, 2010 Petitioner filed a state habeas corpus petition challenging
parole revocation. (Id., pp. 19-47.) The petition was denied.
(Id., pp. 170-75.)
April 9, 2010

Petitioner filed a Self-Initiated Progress Report (SIPR), which
is called an “appeal.” (Dkt. 13-1, p. 2.)

May 4, 2010

Petitioner’s SIPR was denied by the ICPP.1

April 21, 2011

On appeal, the Idaho Court of Appeals affirmed denial of the
petition for writ of habeas corpus. (State’s Lodging B-7.)

June 15, 2011

The Idaho Supreme Court denied the petition for review, and
the remittitur was issued, concluding the state court habeas
corpus action. (State’s Lodgings B-10, B-11.)

December 29, 2011 Petitioner filed the federal Petition for Writ of Habeas Corpus
in this action (mailbox rule date). (Dkt. 1.)
Respondent argues that the Petition for Writ of Habeas Corpus in this action was
filed beyond the statute of limitations deadline because Petitioner had two large gaps in
time that equal more than 365 days–one after his parole revocation and one after the
remittitur was issued in his state habeas action.

1

The Court takes judicial notice of the denial in the public records of the Idaho Commission of
Pardons and Parole. See Fed. R. Evid. 201; Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994) (A court may
take judicial notice of matters of public record in the 12(b) context, such as records and reports of
administrative bodies). The record is found at http://parole.idaho.gov, “Notice of Action Taken List for
the Date of: 5/03/2010 to 05/06/2010.”
MEMORANDUM DECISION AND ORDER - 3

3.

Standard of Law Governing Statute of Limitations
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. The
statute provides several alternative dates for the beginning of the statute of limitations
period, depending upon the type of decision or judgment at issue. The statute of
limitations on a parole claim runs from “the date on which the factual predicate of the . . .
claims presented could have been discovered through the exercise of due diligence” under
§ 2244(d)(1)(D), rather than from “the date on which the judgment became final” under §
2244(d)(1)(A), because an administrative decision is not a judgment. Redd v. McGrath
343 F.3d 1077 (9th Cir. 2003); Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004);
Mardesich v. Cate, 668 F.3d 1164, 1171-72 (9th Cir. 2012).
“As a general rule, the state agency’s denial of an administrative appeal is the
‘factual predicate’ for such habeas claims.” Mardesich, 668 F.3d at 1172. In the parole
denial context, the federal statute of limitations does not begin running until the
administrative appeal is denied, subject to the petitioner receiving proper notice of the
denial. Redd, 343 F.3d at 1082 (California parole scheme); see also Shelby v. Bartlett,
391 F.3d 1061, 1066 (9th Cir. 2004) (Oregon parole scheme).2
2

The Ninth Circuit Court of Appeals has addressed the circumstance in which the federal habeas
corpus statute of limitations expires before a state post-conviction collateral relief statute of limitations
expires. In Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003), the court held that “section 2244(d)
MEMORANDUM DECISION AND ORDER - 4

“Time begins when the prisoner knows (or through diligence could discover) the
important facts, not when the prisoner recognizes their legal significance.” Hasan v.
Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (quoting Owens v. Boyd, 235 F.3d 356,
359 (7th Cir. 2000)). Similarly, “a pro se petitioner’s lack of legal sophistication is not, by
itself, and extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia,
448 F.3d 1150, 1154 (9th Cir. 2006).
4.

Discussion of Statute of Limitations Issue
Because Petitioner is challenging a parole revocation decision rendered by an

administrative body, his statue of limitations began to run on “the date on which the
factual predicate of the claim or claims to be presented could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); Redd, 343 F.3d at
1082. The precise issue in the current Motion for Summary Dismissal is which ICPP
decision functions as the “factual predicate,” according to Idaho law.
Parole revocation in Idaho is governed by the Idaho Administrative Code - Rules
of the Commission of Pardons & Parole (IDAPA) § 50.01.01.400, entitled “Parole
Revocation Process.” IDAPA § 50.01.01.400.09(c)(iv) provides that “the offender is
entitled to a verbal or written decision within twenty (20) days of the hearing” on parole
revocation. It can be argued that this decision is the “factual predicate” if there is no
administrative appeal open to the inmate.

does not permit the reinitiation of the limitations period that has ended before the state petition was filed.”

MEMORANDUM DECISION AND ORDER - 5

This is where Idaho law becomes murky. IDAPA 50.01.01.500, entitled “SelfInitiated Progress Report” (SIPR), provides: “An inmate may appeal the last parole
decision of the commission” (emphasis added). That section next states, “An inmate
making a request for reconsideration of parole denial must initiate the process by
submitting an application” (emphasis added). IDAPA 50.01.01.500.01.
The IDAPA does not mention an administrative appeal process for parole
revocation. The SIPR form does not specify whether it is for parole denial, parole
revocation, or both. (Dkt. 13-1, p. 2.). Here, Petitioner used the SIPR for parole
revocation; nothing in the record or in Idaho case law indicates that its use for a parole
revocation appeal is improper.
The difficulty for a federal habeas corpus statute of limitations analysis is that
IDAPA 50.01.01.500.01(g) provides: “The [SIPR] petition may be submitted no sooner
than six (6) months following the last hearing” (emphasis added).
IDAPA 50.01.01.500.01(h) and 50.01.01.500.02 provide that, once an SIPR
petition or “appeal” is submitted, the ICPP, in executive session or via special hearing,
will consider the petition. This is the same entity that made the original parole revocation
decision, and, thus, it is not a traditional “appeal” in the sense that a higher governing
body is reviewing the decision of the original decision-making entity. It is also a nontraditional “appeal,” because the SIPR instructs the inmate to “[a]ddress the
circumstances that have changed since your last hearing.” (Dkt. 13-1, p. 1.)

MEMORANDUM DECISION AND ORDER - 6

While Idaho law provides that there is no direct judicial appeal from parole
decisions, see Carman v. Idaho Comm’n of Pardons and Parole, 809 P.2d 503 (Idaho
1991),3 revocation of parole can be judicially challenged via state habeas corpus
proceedings. See Idaho Code § 19-4209(5)(b).
Therefore, under the applicable Idaho rules and statutes, Petitioner had two
potential avenues of relief open to him: an administrative appeal and a judicial petition for
writ of habeas corpus. The administrative appeal is an option that was not open to
Petitioner until six months after the administrative decision was rendered. (Dkt. 13-1, p.
2.) The habeas corpus avenue was open immediately, and has no statute of limitations.4
See Idaho Code § 19-4201, et seq. Nothing in the Idaho rules or statutes requires a
Petitioner to first pursue an SIPR before pursuing a state habeas corpus petition; neither
does pursuit of one of the types of action limit the other.
Respondent suggests that the Court follow the reasoning in Leombruno v. Craven,
2006 WL 753229 (D. Idaho 2006):
Given the fact that there is no judicial appeal from a parole denial, and
based on the IDAPA and Commission use of the word “appeal” and
provision of a process for such an appeal, the Court concludes that either (1)
the SIPR is an administrative appeal, which would extend the beginning
3

This decision determined that the Idaho Commission of Pardons and Parole is not an “agency”
within the Administrative Procedures Act, and thus inmates cannot appeal decisions of the Commission.
4

A separate state habeas corpus petition statutorily tolls the federal statute of limitations if the
federal statute has begun running and has not yet expired. See 28 U.S.C. § 2244(d)(2) (providing for
tolling (suspension) 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”). This is a different question from when an administrative decision becomes final, which will
trigger the start of the federal statute of limitations.
MEMORANDUM DECISION AND ORDER - 7

date of the statute of limitations to the date of the final appeal; or,
alternatively, (2) the Commission’s standard Notice and the IDAPA
language would lead inmates to believe the SIPR is an appeal, in which case
equitable tolling would apply to toll all of the time in which an inmate is
attempting to “exhaust” his appeals. If Idaho and the Commission do not
want to lead inmates to believe there is an administrative appeal, it should
not use the word “appeal” in the IDAPA and the Commission’s Notice.
Id. at *3.
The reasoning in Leombruno is sound, and the Court sees no reason to take a
different course here. In Petitioner’s case, he chose to use both remedies. The Court
concludes that the Petition is timely under either option suggested in Leombruno.
First, if the “factual predicate” for Petitioner’s claims is finality of the
administrative appeal, the six months between the decision are not counted toward the
federal statute of limitations because of the lack of finality of the July 14, 2009 parole
revocation decision. That decision became final on May 4, 2010, upon denial of the
SIPR. But, because an appeal of the state habeas petition was pending at that time, the
federal statute of limitations was statutorily tolled until June 15, 2011, when the Idaho
Supreme Court issued its remittitur in the habeas case. The equation for that theory is that
the federal statute of limitations started on May 4, 2010, with tolling beginning on that
date because of the pending habeas petition and ending on June 15, 2011; at that point,
the statute began with 365 days left; and only 197 days elapsed before the filing of the
federal petition on December 29, 2011, leaving Petitioner with 168 days to spare.
Second, as to applying equitable tolling in the present case, Respondent argues that
Petitioner is unlike Mr. Leombruno, because Petitioner did not show diligence in pursuing
MEMORANDUM DECISION AND ORDER - 8

his remedies. 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.
Respondent argues that Petitioner could have filed his SIPR at the six-month mark,
which was January 14, 2010, but he did not file it until April 9, 2010, some 85 days later.
In Evans v. Chavis, 546 U.S. 189 (2006), where a similar issue was at stake–application
of federal habeas corpus statutory tolling within the context of California’s unique postconviction habeas corpus and appeal process–the United States Supreme Court made
conclusions about what was and was not an “unreasonable delay” in filing an appeal
under California’s statutory scheme that provides no set time limits for or between habeas
corpus filings:
Six months is far longer than the “short period[s] of time,” 30 to 60 days,
that most States provide for filing an appeal to the state supreme court.
Saffold, 536 U.S. at 219, 122 S.Ct. 2134. It is far longer than the 10-day
period California gives a losing party to file a notice of appeal in the
California Supreme Court, see Cal.App.Ct. Rule 28(e)(1) (2004). We have
found no authority suggesting, nor found any convincing reason to believe,
that California would consider an unjustified or unexplained 6–month filing
delay “reasonable.” Nor do we see how an unexplained delay of this
magnitude could fall within the scope of the federal statutory word
“pending” as interpreted in Saffold. See 536 U.S., at 222–223, 122 S.Ct.
2134.
Id., 546 U.S. at 210 (citing Carey v. Saffold, 536 U.S. 214 (2002)). While the issue in
both Chavis and Saffold was statutory tolling, and not equitable tolling, the underlying

MEMORANDUM DECISION AND ORDER - 9

issue of “within a reasonable time” can be analogized to the requirement of “diligence” in
the equitable tolling analysis.
Here, after a six-month wait, the first date Petitioner could file an administrative
appeal (an SIPR) was January 14, 2011. He filed his SIPR on April 9, 2011, which was
85 days after the first available date. The Court concludes that 85 days is not far from the
30-60 days that the United States Supreme Court has deemed “reasonable” for pursuing
post-conviction relief, given the fact that Petitioner also had begun a state habeas corpus
action within 41 days of the beginning of the SIPR “appeal period.”5 Although the habeas
corpus action is a separate, collateral review process that was not itself limited by the sixmonth waiting period, it shows that Petitioner was engaged in a course of pursuing all of
his potential remedies, as he claims, within 41 days of the first date he could “appeal.”
The equitable tolling equation also tallies up in favor of Petitioner: the statute of
limitations started when the parole revocation decision was issued on July 14, 2010, and
that time was equitably tolled until Petitioner filed his state habeas petition on February
24, 2011, when the time was statutorily tolled; the federal statute began running on
issuance of the remittitur in that action on June 15, 2011, with 365 days left; only 197
days elapsed between that date and the filing of the federal petition on December 29,
2011, again leaving Petitioner with 168 days to spare.
Accordingly, Petitioner will be permitted to proceed on his claims.
5

As a point of comparison, the Court notes that convicted criminal defendant has 42 days from
the date a final order or judgment is entered in which to file an appeal. See I.A.R. 14(a).

MEMORANDUM DECISION AND ORDER - 10

OTHER PENDING MOTIONS
Respondent has filed a Motion for Extension of Time to File Answer or PreAnswer Motion, with supporting Affidavit. (Dkts. 8, 8-1.) Good cause appearing, the
Motion will be granted, and the Motion for Summary Dismissal (Dkt. 10) will be
considered timely.
Petitioner’s Request for a Status Conference and Scheduling Order (Dkt. 15) will
be granted in part and denied in part. A schedule for the briefing of the merits of the
claims is set forth herein below.
Petitioner has filed a Request to Pursue Discovery. (Dkt. 16.) He also filed a
Motion for Discovery (Dkt. 17), setting forth various types of information he wishes to
obtain from Respondent, such as a copy of the “Behavior Contract” for parole, a copy of
the “Sex Offender Supervision Agreement,” copies of emails and other communication
between himself and the parole officer, Darwin Cameron, and other such items.

The merits of the claims in a federal habeas corpus petition generally are decided
on the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400
(2011). Only in limited circumstances may the state court record be supplemented in
federal court, such as: (1) when a state court did not decide a claim on the merits, and the
claim is properly before the federal court; (2) when the state court factual determination
was unreasonable; (3) when a petitioner wishes to show cause and prejudice in a
procedural default setting; or (4) when a petitioner is trying to show actual innocence to

MEMORANDUM DECISION AND ORDER - 11

overcome a procedural default or statute of limitations issue. Because Petitioner has not
shown that any such grounds exist for discovery, his Request and Motion will be denied.
ORDER
IT IS ORDERED:
1.

Respondents’ Motion for Extension of Time to File Answer or Pre-Answer
Motion (Dkt. 8) is GRANTED. The Motion for Summary Dismissal (Dkt.
10) is considered timely.

2.

Respondents’ Motion for Summary Dismissal (Dkt. 10) is DENIED.

3.

Petitioner’s Request to Pursue Discovery (Dkt. 16) and Motion for
Discovery (Dkt. 17) are DENIED.

4.

Respondent shall file an answer to the claims within 90 days after entry of
this Order. The answer should also contain a brief setting forth the factual
and legal basis of grounds for dismissal and/or denial of the remaining
claim. Petitioner shall file a reply (formerly called a traverse), containing a
brief rebutting Respondent’s answer and brief, which shall be filed and
served within 30 days after service of the answer. Respondent has the
option of filing a sur-reply within 14 days after service of the reply. At that
point, the case shall be deemed ready for a final decision.

5.

No party shall file supplemental responses, replies, affidavits or other
documents not expressly authorized by the Local Rules without first
obtaining leave of Court.

MEMORANDUM DECISION AND ORDER - 12

6.

No discovery shall be undertaken in this matter unless a party obtains prior
leave of Court, pursuant to Rule 6 of the Rules Governing Section 2254
Cases.

7.

Petitioner’s Request for Status Conference (Dkt. 15) is DENIED, and
Petitioner’s Request for Scheduling Order (Dkt. 15) is GRANTED, as set
forth herein above.

DATED: August 7, 2013

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

MEMORANDUM DECISION AND ORDER - 13