Colon v. State of Idaho

Filing 23

MEMORANDUM DECISION AND ORDER Respondent's Motion for Summary Dismissal (Dkt. 16 ) is GRANTED, and this entire action is DISMISSED with prejudice. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOSEPH COLON,
Case No. 1:13-cv-00047-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.

BRENT REINKE,
Respondent.

Pending before the Court is Petitioner Joseph Colon’s Amended Petition for Writ
of Habeas Corpus. (Dkt. 7.) Respondent has filed a Motion for Summary Dismissal of the
Petition. (Dkt. 16.) Petitioner has filed a response, which incorporates the arguments in
Petitioner’s initial state postconviction petition. (Dkt. 22 & 22-1.) The Court takes
judicial notice of the records from Petitioner’s state court proceedings, lodged by
Respondent on August 14, 2014. (Dkt. 14.) See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (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. 12.)
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

MEMORANDUM DECISION AND ORDER 1

record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly,
the Court enters the following Order granting the Motion for Summary Dismissal and
dismissing this case with prejudice as untimely.
BACKGROUND
Pursuant to a plea agreement, Petitioner pleaded guilty, in the Fourth Judicial
District of the State of Idaho in Ada County, to two counts of lewd conduct with a minor
under the age of sixteen in violation of Idaho Code Section 18-1508. (State’s Lodging A1 at 22-30, 35-37; A-2 at 1-10.) In exchange for the guilty plea, the state dismissed two
other charges against Petitioner. (State’s Lodging A-2 at 8.) Petitioner was sentenced on
both counts to a concurrent unified sentence of life imprisonment with twenty years fixed.
(State’s Lodging A-1 at 35-37.) The judgment of conviction was entered on September
27, 2007. (Id.) Petitioner did not file a direct appeal from his conviction or sentence.
On October 19, 2007—before the expiration of the time for filing a direct
appeal—Petitioner filed a motion for reduction of sentence under Idaho Criminal Rule 35.
(Id. at 39-42.) The trial court denied the motion. (Id. at 65-67.) Petitioner appealed, and
the Idaho Court of Appeals affirmed. (State’s Lodging B-4.) The Idaho Supreme Court
denied Petitioner’s petition for review, and the remittitur issued on March 13, 2009.
(State’s Lodging B-7.)
Petitioner filed a pro se petition for postconviction relief in the state district court
on March 4, 2010. (State’s Lodging C-1 at 5-13.) The court appointed counsel to

MEMORANDUM DECISION AND ORDER 2

represent Petitioner, and an amended petition was later filed, asserting several claims of
ineffective assistance of trial counsel. (Id. at 58-61.) The trial court summarily dismissed
some of the claims, but held an evidentiary hearing on the others. (Id. at 114; State’s
Lodging C-3 at 18-26.) After the evidentiary hearing, at which both Petitioner and trial
counsel testified, the court concluded that trial counsel’s testimony was credible and that
Petitioner’s testimony was not credible. (State’s Lodging C-4 at 45-46.) The court
dismissed the postconviction petition. (State’s Lodging C-1 at 114.) The Idaho Court of
Appeals affirmed the dismissal. (State’s Lodging D-4.) The Idaho Supreme Court denied
review on September 25, 2012, and the remittitur was issued the same day.
Petitioner filed his initial Petition in this Court, at the earliest, on January 24, 2013.
(Dkt. 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 (“Habeas Rules”). Petitioner later filed an Amended Petition. (Dkt. 7.) He asserts
five claims:
Claim One: Petitioner’s sentence constitutes cruel and unusual
punishment and therefore violates the Eighth
Amendment to the United States Constitution.
Claim Two: Petitioner was deprived of due process when he was
incarcerated in the Ada County Jail for 89 days.
Claim Three: Petitioner’s Fifth Amendment privilege against selfMEMORANDUM DECISION AND ORDER 3

incrimination was violated when he was ordered to
undergo a psychosexual evaluation for sentencing
purposes, and/or trial counsel rendered ineffective
assistance in violation of the Sixth Amendment by
failing to advise Petitioner of his right, under Estrada
v. State, 149 P.3d 833 (Idaho 2006), not to participate
in the psychosexual evaluation.
Claim Four: Petitioner received ineffective assistance of trial
counsel on numerous other grounds.
Claim Five: Petitioner’s Fourth Amendment rights were violated
when a probable cause hearing was not conducted
within 48 hours of his arrest.
(Am. Pet. at 2-4.)
Respondent now moves for summary dismissal of the Petition, arguing 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 is entitled only to limited statutory tolling and is not
entitled to equitable tolling, the Petition is time-barred.
DISCUSSION
1.

Standard of Law Governing Summary Dismissal
Rule 4 of the Habeas Rules 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 attached exhibits that the petitioner is not entitled to relief
in the district court.” In such case, the Court construes the facts in the light most
MEMORANDUM DECISION AND ORDER 4

favorable to the petitioner.
2.

Petitioner’s Claims Are Barred by the Statute of Limitations
A.

Standard of Law

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
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.

Petitioner’s case involves subsection (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. Direct review of a conviction includes the opportunity to file a petition for a writ

MEMORANDUM DECISION AND ORDER 5

of certiorari in the United States Supreme Court. The Supreme Court has clarified
application of § (d)(1)(A) as follows:
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.
Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012). Because Petitioner did not file a
direct appeal, his conviction became final on November 8, 2007, when Idaho’s 42-day
period for filing an appeal expired. See Idaho Appellate Rule 14(a).
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) (determining
that a motion to reduce sentence under Rhode Island law tolled the statute of limitations
pursuant to § 2244(d)(2)). Thus, to the extent that a petitioner properly filed an
application for postconviction relief or other collateral challenge in state court, the oneyear federal limitations period stops running on the filing date of the state court action

MEMORANDUM DECISION AND ORDER 6

and resumes when the action is completed. Lawrence v. Florida, 549 U.S. 327, 331-32
(2007). The statute “does not toll the 1-year limitations period during the pendency of a
petition for certiorari” with respect to collateral challenges. (Id. at 332.)
If, after applying statutory tolling, a petition is deemed untimely, a federal court
can still hear the claims if the petitioner can establish that “equitable tolling” should be
applied to toll the remaining time period. The limitations period may 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, 560 U.S.
631, 649 (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).
B.

The Petition Was Not Timely Filed

Absent tolling, the statute of limitations period would have expired on November
8, 2010. As noted above, Petitioner filed his initial Petition in this Court, at the earliest,
on January 24, 2013. Thus, the claims in the Amended Petition are barred by AEDPA’s
one-year statute of limitation unless Petitioner establishes that he is entitled to statutory
or equitable tolling.1

1

In addition to the doctrines of statutory and equitable tolling, the statute of limitations is
also subject to an actual innocence exception. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32
(2013). However, Petitioner does not argue that he is actually innocent.
MEMORANDUM DECISION AND ORDER 7

i.

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.
§ 2244(d)(2). Petitioner’s motion for a reduction of sentence under Idaho Criminal Rule
35 qualifies as an application for collateral review. See Wall, 131 S. Ct. at 1286-87. In
addition, because that motion was filed before the conviction became final, the statute of
limitations was tolled and did not begin to run until the collateral proceedings on that
motion were completed.
To determine the date when Petitioner’s Rule 35 proceedings concluded, the
Court looks to state law. Allen v. Lewis, 295 F.3d 1046, 1046 (9th Cir. 2002) (en banc)
(reaffirming Bunney v. Mitchell, 249 F.3d 1188 (9th Cir. 2001), superseded by Cal. Rule
of Court 29.4(b)(2)(C)); see also Lawrence, 549 U.S. at 331. In Idaho, decisions of the
Idaho Supreme Court are final when the remittitur is issued. See Jakoski v. State, 32 P.3d
672, 679 (Idaho Ct. App. 2001). The remittitur on Petitioner’s appeal regarding his Rule
35 motion issued on March 13, 2009 (State’s Lodging B-7), and AEDPA’s one-year
statute of limitations began to run on that date.
Statutory tolling does not apply to the time between the issuance of the remittitur
on Plaintiff’s Rule 35 motion and the date Petitioner filed his postconviction petition.
See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (“AEDPA’s statute of

MEMORANDUM DECISION AND ORDER 8

limitations is not tolled from the time a final decision is issued on direct state appeal and
the time the first state collateral challenge is filed because there is no case ‘pending’
during that interval.”), abrogated on other grounds as stated in Nedds v. Calderon, 678
F.3d 777, 781 (9th Cir. 2012). Therefore, by the time Petitioner filed his state
postconviction petition on March 4, 2010, 356 days of the limitations period had already
passed. At that point, only nine days remained in the limitations period.
The proceedings on Petitioner’s state postconviction petition concluded on
September 25, 2012. Thus, Petitioner had nine days—until October 4, 2012—to file his
federal habeas petition. Even with statutory tolling, Petitioner’s January 24, 2013 federal
petition was filed more than three months too late. Therefore, Petitioner’s claims can be
deemed timely only if he is also entitled to equitable tolling.
ii.

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, 560 U.S. at 649. “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).
Petitioner has not established extraordinary circumstances that would justify the

MEMORANDUM DECISION AND ORDER 9

application of equitable tolling in this case. Petitioner stated in his state postconviction
petition—which he incorporates in his response to the Motion for Summary
Dismissal—that after his Rule 35 proceedings concluded, he was transferred to an outof-state prison. (Dkt. 22; State’s Lodging C-1 at 6, 9.) Plaintiff claimed that he had no
way to access the Idaho courts or to work with a court-appointed attorney to perfect a
direct appeal while he was incarcerated outside the state. (Id.)
However, Petitioner does not state when he was transferred or how long he
remained in the out-of-state facility. The Court therefore cannot conclude that his
transfer “made it impossible to file a petition on time.” Ramirez, 571 F.3d at 997
(emphasis added) (internal quotation marks and alteration omitted). Moreover, Petitioner
had been transferred back to an Idaho prison before he filed his state postconviction
petition (see State’s Lodging C-1 at 5), yet Petitioner does not explain why he could not
file his federal Petition in the more than three months that passed between the conclusion
of his state postconviction proceedings and the date he filed his federal Petition.
For the foregoing reasons, Petitioner has not met his burden of showing that
extraordinary circumstances beyond his control prevented him from filing a timely
habeas petition.
CONCLUSION
The initial Petition was filed after the one-year statute of limitations period had
already expired, and Petitioner is entitled to statutory tolling only for a portion of that

MEMORANDUM DECISION AND ORDER 10

one-year period. Because Petitioner has not shown that equitable tolling applies to toll
the remaining time period, the Amended Petition will be dismissed with prejudice as
untimely.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion for Summary Dismissal (Dkt. 16) is GRANTED, and
this entire action is DISMISSED with prejudice.

2.

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: May 28, 2014

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER 11