Allsop v. Idaho

Filing 23

MEMORANDUM DECISION AND ORDER re: 3 Petition for Writ of Habeas Corpus filed by William R Allsop. The Motion for Extension of Time to File a Motion to Dismiss (Dkt. 16) is GRANTED. The Motion for Summary Dismissal (Dkt. 18) is considered timely, and is GRANTED. The Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED with prejudice. 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WILLIAM R. ALLSOP,
Case No. 1:12-cv-00260-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
BRENT REINKE,1
Respondent.

Idaho state prisoner William Allsop filed a Petition for Writ of Habeas Corpus
challenging his state criminal conviction and sentence. (Dkt. 3.) Respondent filed a
Motion for Summary Dismissal, asserting that the Petition is subject to dismissal because
the claims are both untimely and procedurally defaulted. (Dkt. 18, 18-1.) Petitioner
received the Notice to Pro Se Litigants of the Summary Judgment Rule Requirements and
filed a Response. (Dkt. 19, 22.) The Motion is now ripe for adjudication.
Both parties have consented to the jurisdiction of a United States Magistrate Judge
to enter final orders, in accordance with U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. 7,

1

Because Petitioner is now housed at an out-of-state facility and Petitioner cannot proceed
against the state of Idaho, the Court has substituted Respondent Brent Reinke, Idaho Department of
Correction Director, who is Petitioner’s legal custodian. See Fed. R. Civ. P. 25(d); Rule 2(a), Rules
Governing Section 2254 Cases; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004) (the custodian “is ‘the
person’ with the ability to produce the prisoner's body before the habeas court.”).

MEMORANDUM DECISION AND ORDER - 1

11, 12.) Having reviewed the record, including the state court record, the Court concludes
that oral argument is unnecessary. Accordingly, the Court enters the following Order.
BACKGROUND
On February 24, 2006, Petitioner was charged with two counts of lewd conduct
with a minor under the age of sixteen in a criminal case in Bonneville County, Idaho.
(State’s Lodging A-1, pp. 7-8.) A competency evaluation and hearing revealed that
Petitioner was unable to proceed with his defense, and he was committed to the
Department of Health and Welfare for 90 days. (Id., pp. 27-28; State’s Lodging A-3, pp.
1-148.) During his commitment, Petitioner was re-evaluated and found competent. The
state district court found Petitioner competent to proceed on January 8, 2007. (State’s
Lodgings A-1, p. 64; A-3, pp. 149-155.)
On February 27, 2007, Petitioner entered into a plea agreement with the State,
pleading guilty to one count of lewd conduct in exchange for dismissal of the other count
and an agreement from the State not to file additional charges. (State’s Lodging A-1, pp.
81-82.) At sentencing, the Court imposed a sentence of 15 years fixed, with life
indeterminate. (Id., pp. 87-90.) Thereafter, Petitioner filed a Rule 35 motion for reduction
of sentence, which was denied. (Id., pp. 92-94, 112D.)
Petitioner filed a direct appeal, in which he alleged that the state district court
abused its discretion in pronouncing a sentence that was excessive and in denying the
Rule 35 motion. (State’s Lodging B-1.) Petitioner focused on whether the state district
court properly applied state case law and statutory law in considering Petitioner’s mental
MEMORANDUM DECISION AND ORDER - 2

illness, arguing that the primary reason for the lengthy sentence was the State’s lack of
adequate mental health resources and alternatives to a prison sentence.
The Idaho Court of Appeals affirmed the sentence and denial of the Rule 35
motion based upon state law, and the Idaho Supreme Court denied the petition for review.
(State’s Lodgings B-3, B-6.) The remittitur was issued on April 22, 2009. (State’s
Lodging B-7.)
Over one year later, on August 6, 2010, Petitioner filed a petition for postconviction relief, asserting that his trial counsel was ineffective under the Sixth
Amendment for not advising him of his Fifth Amendment privilege against selfincrimination as it applied to pre-sentencing psychosexual evaluations. (State’s Lodging
C-1, pp. 3-7.) The district court appointed counsel for Petitioner and then dismissed the
petition as untimely, after a hearing in which Petitioner’s counsel conceded that the
petition was untimely and that Petitioner had no evidence to show that equitable tolling
should be applied (such as evidence of incompetency). (State’s Lodging C-1, p. 14; C-2,
pp. 1-2, 21-22.)
The Court appointed the State Appellate Public Defender for Petitioner on appeal,
who reviewed the case and filed a motion to withdraw from the case after concluding that
there were no meritorious issues for appeal. (State’s Lodgings D-1, D-2.) The motion was
granted, and Petitioner proceeded pro se. (State’s Lodgings D-3, D-4.)
On appeal, Petitioner argued that he was incompetent and did not understand his
plea agreement as a result of the medication he was taking at that time, and that the Idaho
MEMORANDUM DECISION AND ORDER - 3

Court of Appeals should overturn his indeterminate life sentence. (State’s Lodging D-4.)
At the same time, Petitioner also stated that he did not contest his guilty plea, and he
failed to address the timeliness issue. (Id.) The Idaho Court of Appeals concluded that it
would not consider the issue of incompetency at the plea stage of proceedings, because it
was raised for the first time on appeal. (State’s Lodging D-6, p. 2.) In addition, in
reviewing the timeliness issue, the Court of Appeals determined, “when the basis for a
trial court’s ruling is not challenged on appeal, an appellate court will affirm on the
unchallenged basis.” As a result, the district court’s dismissal on the basis of untimeliness
was affirmed. (Id., p. 3)
Petitioner did not file a petition for review before the Idaho Supreme Court, and
the remittitur was issued on May 23, 2012. (State’s Lodging D-7.) This concluded
Petitioner’s state court proceedings.
The federal Petition for Writ of Habeas Corpus in this action was filed on May 22,
2012 (mailbox rule date), during the pendency of the (untimely) post-conviction action.
Petitioner asserts three claims. Because the first claim was indecipherable, it was
dismissed on initial review. (Dkt. 8.) The second claim is that Petitioner’s guilty plea was
involuntary under the Fourteenth Amendment as a result of Petitioner’s medication. The
third claim is that Petitioner’s sentence constitutes cruel and unusual punishment under
the Eighth Amendment. (Id.)

MEMORANDUM DECISION AND ORDER - 4

REVIEW OF MOTION FOR SUMMARY DISMISSAL
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).
1.

Statute of Limitations
A.

Standard of Law

The Petition for Writ of Habeas Corpus in this case is governed by the provisions
of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), enacted in 1996. Under
AEDPA, petitioners have a one-year statute of limitations period within which to file a
federal habeas corpus petition. The one-year period usually begins to run from the date
the state court judgment “became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The United
States Supreme Court has clarified application of this rule:
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.

MEMORANDUM DECISION AND ORDER - 5

Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012).
The statute provides 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.” 28 U.S.C. §
2244(d)(2). A motion to reduce one’s sentence that is not a part of the direct review
process and that requires re-examination of the sentence to determine appropriateness
qualifies as a collateral review application that tolls the one-year statute of limitations.
Wall v. Kholi, 131 S.Ct. 1278 (2011). Thus, to the extent that a petitioner properly filed
an application for post-conviction relief in state court, or other collateral review, the time
that such application was pending in state court will not count toward the one-year
limitations period.
The limitations period may be equitably tolled under exceptional circumstances.
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, an exceptional
circumstance must have caused Petitioner to be unable to file his federal Petition in time.
Petitioner bears the burden of showing that equitable tolling should apply to his case.
Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
The United States Court of Appeals for the Ninth Circuit has determined that
there is an “actual innocence” exception to the AEDPA statute of limitations. See Lee v.
MEMORANDUM DECISION AND ORDER - 6

Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc). To qualify for the exception, a
petitioner must show that it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt. Id. at 937.
B.

Discussion of Timeliness

As noted above, Petitioner’s direct appeal concluded on April 22, 2009. Petitioner
then had 90 days to file a petition for writ of certiorari with the United States Supreme
Court. Petitioner’s judgment became final at the expiration of the 90 day, which was July
21, 2009.
Petitioner’s federal statute of limitations began running on July 21, 2009, and
expired one year later, on July 21, 2010. Petitioner’s state post-conviction action was not
filed until August 31, 2010, which was too late to toll the federal statute of limitations,
which had already expired. In addition, because only properly filed state collateral
proceedings toll the federal statute and Petitioner’s state post-conviction action was
deemed untimely by the state courts, it could not serve to toll the statute of limitations,
even if it had been filed prior to the expiration of the one-year period.
C.

Discussion of Equitable Tolling and Actual Innocence Exceptions

Petitioner’s response to the Motion to Dismiss is centered on his actual innocence.
He alleges that he initially lied to the police officers when he said he had sexually
penetrated the victim; he did so because the police detective convinced him that was
true. However, he does admit to having sexual contact short of penetration with the
victim. (Dkt. 22.)
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This assertion of actual innocence is not accompanied by any new evidence. In
addition, it does not show that he is actually innocent, because the crime of lewd conduct
does not require penetration, only sexual contact, to which Petitioner admits. See Idaho
Code § 18-1508.2
Further, the record contains Petitioner’s in-court declaration, under oath, that he
had genital-genital contact with a 13-year-old girl with intent to gratify his sexual desires
on February 22, 2006. (State’s Lodging A-2, p. 16.) At the sentencing hearing, Petitioner
stated: “I would like to apologize to the family and the victim. Tell them I’m sorry.”
(State’s Lodging A-2, p. 32.)
The general rule as to individuals who first state they are guilty under oath, and
then later seek to recant that testimony, was set forth in Blackledge v. Allison, 431 U.S.
63 (1977):
[T]he representations of the defendant, his lawyer, and the
prosecutor at [a plea] hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong
presumption of verity. The subsequent presentation of conclusory
2

Idaho Code § 18-1508 provides:

Any person who shall commit any lewd or lascivious act or acts upon or with the body or
any part or member thereof of a minor child under the age of sixteen (16) years, including
but not limited to, genital-genital contact, oral-genital contact, anal-genital contact,
oral-anal contact, manual-anal contact, or manual-genital contact, whether between
persons of the same or opposite sex, or who shall involve such minor child in any act of
bestiality or sado-masochism as defined in section 18-1507, Idaho Code, when any of
such acts are done with the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of such person, such minor child, or third party, shall be guilty
of a felony and shall be imprisoned in the state prison for a term of not more than life.

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allegations unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly incredible.
Id. at 73-74.
Based upon the evidence in the record, Petitioner has not shown that it is more
likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt. Therefore, Petitioner has not shown that the actual innocence
exception should apply to permit the merits of his claims to be considered.
Neither does the record reflect any facts that would support an equitable tolling
argument. For example, on post-conviction review, Petitioner’s counsel stated that no
issues of incompetency were apparent to support an assertion that the state postconviction statute of limitations should be equitably tolled, which is essentially the same
time period at issue here.3
2.

Conclusion
Because the Petition for Writ of Habeas Corpus in this case was untimely, it will

be dismissed with prejudice. As a result, the Court need not consider the procedural
default argument.

3

Petitioner’s counsel stated:

“[T]he fact of the matter is, I don’t have any evidence to suggest that he’s been
incompetent during the time that this has been pending, so I don’t know that I have
anything that could toll it. I don’t – my client doesn’t – hasn’t given me anything to
suggest that he’s incompetent now, and I don’t have a doctor’s opinion.”
(State’s Lodging C-2, p. 2.) Counsel went on to say that, even if he were given an opportunity to try to
obtain a doctor’s opinion on incompetency, he did not think he would be able to obtain one. (Id., pp. 2-3.)
MEMORANDUM DECISION AND ORDER - 9

ORDER
IT IS ORDERED:
1.

The Motion for Extension of Time to File a Motion to Dismiss (Dkt. 16) is
GRANTED. The Motion for Summary Dismissal (Dkt. 18) is considered
timely, and is GRANTED.

2.

The Petition for Writ of Habeas Corpus (Dkt. 3) is DISMISSED with
prejudice.

3.

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); Rule 11 of the Rules Governing Section 2254 Cases.
If Petitioner files a timely notice of appeal, the Clerk of Court shall
forward a copy of the notice of appeal, together with this Order, to the
United States Court of Appeals for the Ninth Circuit. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.
DATED: June 6, 2013

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 10