Block v. State of Idaho

Filing 17

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Respondent's Motion for Partial Summary Dismissal 10 is GRANTED, and this entire action is DISMISSED with prejudice. Petitioner's Motion and Brief Opposing Dismissal 12 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 Edward J. Lodge. (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

BRANDON BLOCK,
Case No. 1:12-cv-00440-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
STATE OF IDAHO,
Respondent.

Pending before the Court is Petitioner Brandon Block’s Petition for Writ of Habeas
Corpus (Dkt. 3). Respondent has filed a Motion for Summary Dismissal. (Dkt. 10).
Petitioner has filed a Motion and Brief Opposing Dismissal (Dkt. 12). Respondent has
filed a Reply (Dkt. 14), and Petitioner has filed a Sur-reply (Dkt. 15). The Court takes
judicial notice of the records from Petitioner’s state court proceedings, lodged by
Respondent on March 26, 2013, and April 24, 2013 (Dkt. 9, 13). Fed. R. Evid. 201(b);
Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
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 the decisional process would not be significantly aided by oral
argument. Therefore, the Court shall decide this matter on the written motions, briefs and
record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters

MEMORANDUM DECISION AND ORDER 1

the following Order granting Respondent’ Motion and dismissing this case.
BACKGROUND
On June 9, 2008, Petitioner pleaded guilty in state court to lewd conduct with a
minor under the age of 16, in violation of Idaho Code § 18-1508. Petitioner was
sentenced to 20 years in prison with 6 years fixed. (State’s Lodging C-5 at 1.) The court
retained jurisdiction and placed Petitioner on a rider. On November 28, 2008, following
completion of the rider, the court placed Petitioner on probation for a term of 20 years.
(Id.; State’s Lodging A-4.) Petitioner did not appeal his conviction or sentence.
After Petitioner violated his probation, the court revoked it and imposed
Petitioner’s underlying sentence. (State’s Lodging A-5.) Petitioner filed a state
postconviction petition on March 2, 2011, alleging ineffective assistance of counsel. The
state district court dismissed the petition as having been filed beyond the statute of
limitations period. (Id.; State’s Lodging B-1 at 58-60.)
The Idaho Court of Appeals affirmed. Because the postconviction petition was
filed more than one year and 42 days after the trial court imposed probation, the petition
was untimely pursuant to Idaho Code § 19-4902 and Idaho Appellate Rule 14. The court
of appeals also held that Petitioner had not established a basis for tolling the statute of
limitation. (State’s Lodging C-5 at 2-3.) The Idaho Supreme Court denied review on
August 1, 2012. (State’s Lodging C-9, C-10.)
Petitioner filed the instant Petition for Writ of Habeas Corpus on August 22, 2012

MEMORANDUM DECISION AND ORDER 2

(mailbox rule).1 He asserts the following claims: (1) that he was denied his Sixth
Amendment right to effective assistance of counsel based on trial counsel’s failure to take
the case to trial or to procure a binding plea agreement under Idaho Criminal Rule 11; (2)
that he was coerced to plead guilty based on trial counsel’s alleged threat to Petitioner
that counsel would divulge attorney-client privileged information; (3) that he was coerced
to plead guilty based on trial counsel’s alleged threat to charge Petitioner’s mother with a
crime; (4) that counsel was ineffective for failing to appeal Petitioner’s conviction and
sentence; (5) that counsel was ineffective for failing “to secure a plea agreement promised
petitioner to a 2 year fixed plus 8 years indeterminate”; (6) that the sentencing judge was
not justified in revoking Petitioner’s probation; (7) that Petitioner’s sentence constitutes
cruel and unusual punishment in violation of the Eighth Amendment; and (8) that the
initial “counsel appointed to represent the petitioner disqualified himself without
justification.” (Pet. at 6-10.)
Respondent now moves for summary dismissal of the Petition.
DISCUSSION
Respondent contends that Petitioner’s claims are barred by the statute of
limitations and are procedurally defaulted. The Court need not address Respondent’s
procedural default argument. The initial Petition was filed after the one-year statute of
limitations had already run. See 28 U.S.C. § 2244(d). Because Petitioner (1) is not entitled
1

See Houston v. Lack, 487 U.S. 266 (1988) (holding that a legal document is deemed filed on the
date a prisoner delivers it to the prison authorities for filing by mail, rather than the date it is actually filed
with the clerk of court.

MEMORANDUM DECISION AND ORDER 3

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 Second Amended Petition with
prejudice as untimely.
1.

Summary Dismissal Standard
Rule 4 of the Rules Governing § 2254 Cases 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 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.
2.

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). 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

MEMORANDUM DECISION AND ORDER 4

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.

However, the one-year statute of limitations can be tolled (or 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 post-conviction 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. Any
post-conviction petition or other collateral proceeding that is untimely 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).
The limitations period may also be equitably tolled 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, 130 S. Ct. 2549, 2562

MEMORANDUM DECISION AND ORDER 5

(2010) (internal 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. 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).
3.

The Petition Was Not Timely Filed
Petitioner’s case is subject to 28 U.S.C. § 2244(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, and his federal petition was due one year later. Idaho law provides a
42-day period within which a criminal defendant may file an appeal. Because Petitioner
did not file a direct appeal, his conviction became final 42 days after the trial court placed
him on probation. See Idaho Appellate Rule 14(a) (“If, at the time of judgment, the
district court retains jurisdiction pursuant to Idaho Code § 19-2601(4), the length of time
to file an appeal from the sentence contained in the criminal judgment shall be enlarged
by the length of time between entry of the judgment of conviction and entry of the order
relinquishing jurisdiction or placing the defendant on probation . . . .”).
Petitioner’s probation was imposed on November 28, 2008, and his conviction
became final 42 days later, on January 9, 2009. He therefore had until January 9, 2010 to
MEMORANDUM DECISION AND ORDER 6

file his federal petition. Because the Petition was not filed until August 22, 2012, all of
Petitioner’s habeas claims are time-barred unless he can establish that he is entitled to
statutory or equitable tolling or that he is actually innocent.
Petitioner is not entitled to statutory tolling because he filed his state
postconviction petition in March 2011, more than a year after AEDPA’s statute of
limitations had already expired. See Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir.
2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period that
has ended before the state petition was filed.”).2 In addition, because only properly filed
state collateral proceedings toll the federal statute and Petitioner’s state postconviction
action was deemed untimely by the state courts, it could not serve to toll AEDPA’s statute
of limitations even if it had been filed prior to the expiration of the one-year period. Pace,
544 at 414.
As noted above, equitable tolling will apply if (1) the petitioner has pursued his
rights diligently and (2) extraordinary circumstances stood in his way and prevented a
timely filing. Holland, 130 S. Ct. at 2562. “Equitable tolling is justified in few cases,
though. ‘Indeed, the 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) (alteration omitted) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.
2002).

2

For the same reason, Petitioner’s motion for reduction of sentence under Idaho Criminal Rule
35, filed on April 29, 2010, does not toll the statute of limitation. (See Dkt. A-1.)

MEMORANDUM DECISION AND ORDER 7

Petitioner has not established extraordinary circumstances that would justify the
application of equitable tolling in this case. Petitioner states that he told his trial counsel
to file a direct appeal but that counsel did not do so. Even assuming the truth of this
allegation, Plaintiff has not explained how counsel’s inaction “made it impossible to file a
petition on time.” Ramirez, 571 F.3d at 997 (emphasis added) (internal quotation marks
and alteration omitted). Petitioner has simply not met his burden of showing that
extraordinary circumstances beyond his control prevented him from filing a timely habeas
petition.
Finally, Petitioner has not made a colorable showing of actual innocence.
Although Petitioner claims that the victim lied about her age and initiated the sexual
relationship for which he was convicted, there is no evidence to suggest that Petitioner
did not commit the crime of lewd conduct with a minor under the age of 16. See State v.
Flowers, 249 P.3d 367, 371 (Idaho 2011) (noting the trial court’s statement to the
defendant that a mistake as to the age of the victim is not a defense to a lewd conduct
charge); State v. Oar, 924 P.2d 599, 602 (Idaho 1996) (consent is not a defense to a lewd
conduct charge); State v. Stiffler, 763 P.2d 308, 310 (Idaho Ct. App. 1988) (“An honest
mistake as to the age of the victim has never been held to be a constitutional defense to
statutory rape.”).
CONCLUSION
Petitioner did not file his federal Petition until after the statute of limitations had
expired. Because he is not entitled to statutory or equitable tolling, and because he has not
MEMORANDUM DECISION AND ORDER 8

shown actual innocence, the Petition will be dismissed with prejudice as untimely.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Partial Summary Dismissal (Dkt. 10) is
GRANTED, and this entire action is DISMISSED with prejudice.

2.

Petitioner’s Motion and Brief Opposing Dismissal (Dkt. 12) is DENIED.

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: December 13, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER 9