Lash v. Wasden

Filing 19

MEMORANDUM DECISION AND ORDER granting 12 Respondent's Motion for Summary Dismissal; granting 16 Respondent's Motion for Extension of Time to File Reply Brief. 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 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

SHAWN ALLAN LASH,
Case No. 1:12-cv-00493-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
ATTORNEY GENERAL, State of Idaho,
LAWRENCE G. WASDEN,
Respondent.

Pending before the Court is Petitioner Shawn Allan Lash’s Petition for Writ of
Habeas Corpus (Dkt. 3). Respondent has filed a Motion for Summary Dismissal. (Dkt.
12). Petitioner has filed a response to the Motion (Dkt. 15), and Respondent has filed a
reply (Dkt. 17).1 The Court takes judicial notice of the records from Petitioner’s state
court proceedings, lodged by Respondent on July 1, 2013, and August 14, 2013. See Fed.
R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
The parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 11.)
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

1

Respondent’s Motion for Extension of Time to File the Reply will be granted, and the reply is
deemed timely.

MEMORANDUM DECISION AND ORDER 1

record and that the decisional process would not be significantly aided by oral argument.
Therefore, the Court will 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 the
following Order granting the Motion and dismissing this case with prejudice.
BACKGROUND
Petitioner was convicted by a jury of three counts of lewd conduct with a minor
under the age of sixteen in violation of Idaho Code § 18-1508, and three counts of sexual
battery of a minor child sixteen or seventeen years of age, in violation of Idaho 181508A(1)(a), in the Fourth Judicial District Court in Ada County, Idaho. The Idaho Court
of Appeals affirmed Petitioner’s convictions on September 17, 2009. (State’s Lodging B4.) Petitioner did not file a petition for review with the Idaho Supreme Court, and the
court of appeals issued the remittitur on October 14, 2009. (State’s Lodging B-5.)
Petitioner filed a petition for state postconviction relief, at the earliest, on March
26, 2010.2 (State’s Lodging C-1 at 5.) The state district court granted the state’s motion
for summary dismissal on July 23, 2010. (Id. at 81-86.) The Idaho Court of Appeals
affirmed the dismissal, and the Idaho Supreme Court denied Petitioner’s petition for
review. (State’s Lodging D-8, D-12.) The final remittitur was issued on January 11, 2012.
(State’s Lodging D-13.)

2

See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (holding that if a prisoner is entitled to the
benefit of the mailbox rule, a legal document is deemed filed on the date a Petitioner delivers it to the
prison authorities for filing by mail, rather than the date it is actually filed with the clerk of court); Rule
3(d) of the Rules Governing Section 2254 Cases.

MEMORANDUM DECISION AND ORDER 2

Petitioner filed his federal Petition for Writ of Habeas Corpus, at the earliest, on
September 21, 2012.
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 Petition was filed after the one-year statute of
limitations had already run. See 28 U.S.C. § 2244(d). Because Petitioner is entitled only
to limited statutory tolling and is not entitled to equitable tolling, the Petition will be
dismissed as untimely.
1.

Standard of Law for Summary Dismissal
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 attached exhibits that the petitioner is not
entitled to relief in the district court.” In such a 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:

MEMORANDUM DECISION AND ORDER 3

(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
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.

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). 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
postconviction 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).

MEMORANDUM DECISION AND ORDER 4

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
(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).3
3.

Analysis of the Statute of Limitations As It Applies to the Petition
Petitioner’s case involves 28 U.S.C. § 2254(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. Because Petitioner did not file a petition for review with the Idaho Supreme
Court on direct appeal, his conviction became final on October 14, 2009, when the Idaho
Court of Appeals issued its remittitur. Therefore, absent statutory or equitable tolling, the
Petition would have been due on October 14, 2010.
A.

Statutory Tolling

As set forth above, AEDPA’s one-year limitations period is tolled for all of the
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.

3

The statute of limitations is also subject to an actual innocence exception. McQuiggin v.
Perkins, 133 S.Ct. 1924, 1931-32 (2013). That exception is inapplicable to Petitioner’s claims because he
does not contend that he is actually innocent. (See Dkt. 15 at 12) (“This was an absolutely horrendous
crime for which I am truly ashamed.”).

MEMORANDUM DECISION AND ORDER 5

§ 2244(d)(2). However, the time between the date the conviction became final and the
filing of a state postconviction petition is not subject to statutory tolling. Nino v. Galaza,
183 F.3d 1003, 1006 (9th Cir. 1999), abrogated on other grounds by Pace, 544 U.S. 408.
In this case, 163 days of the one-year statute of limitations period had already passed at
the time Petitioner filed his state postconviction petition on March 26, 2010. At that point,
Petitioner had 202 days remaining in the limitations period.
The statute of limitations was tolled until January 11, 2012, when the Idaho
Supreme Court issued its remittitur in Petitioner’s postconviction case. Petitioner was
therefore required to file his federal Petition by July 31, 2012 (202 days after January 11,
2012). However, the instant Petition was not filed until September 21, 2012. Therefore,
the Petition is untimely unless Petitioner can show that he is also entitled to equitable
tolling.
B.

Equitable Tolling

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).

MEMORANDUM DECISION AND ORDER 6

Petitioner states that he was hindered in his ability to challenge his conviction
because he was transferred twice to out-of-state prisons and is “being denied documents
absolutely paramount to this case.” (Dkt. 15-1 at 3.) But Petitioner does not explain how
the absence of these documents, which Respondent has now lodged with the Court and
provided to Petitioner (see Dkt. 17 at 5 n.1; Dkt. 18), “made it impossible to file a petition
on time.” Ramirez, 571 F.3d at 997 (emphasis added) (internal quotation marks and
alteration omitted). Further, inmates are routinely transferred between prisons, and
sometimes even out-of-state prisons. Such transfers are hardly the sort of extraordinary
circumstances that would justify equitable tolling. As Respondent correctly points out,
Petitioner “has not alleged any particular facts associated with these transfers, such as
restricted access to the courts, that would have even caused delays in his court filings, let
along render timely filings impossible under the facts of this case.” (Dkt. 17 at 4.)
Petitioner simply has not established that he is entitled to equitable tolling.
CONCLUSION
For the foregoing reasons, the Court concludes that Petitioner’s habeas claims are
barred by AEDPA’s one-year statute of limitations. See 28 U.S.C. § 2244(d). Therefore,
pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition for Writ of
Habeas Corpus must be dismissed.

MEMORANDUM DECISION AND ORDER 7

ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Extension of Time to File Reply Brief (Dkt. 16) is
GRANTED.

2.

Respondent’s Motion for Summary Dismissal (Dkt. 12) is GRANTED, and
this entire action is DISMISSED with prejudice as untimely.

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 20, 2013

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER 8