Brennan v. Wengler

Filing 17

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Petitioner's Motion to Stay 8 is GRANTED. The Clerk of Court shall stay and administratively terminate this case. Respondent's Motion to Dismiss 12 is DENIED without prejudice torenewing the motion when the state court proceedings have terminated. Either Petitioner or Respondent shall file a motion to re-open this case within 21 days after its conclusion in the Idaho Supreme Court. No party shall file anything additional in this matter while the case is stayed. 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

PETER J. BRENNAN,
Case No. 1:13-cv-00128-EJL
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
WARDEN J. ELLIS,1
Respondent.

Pending before the Court in this habeas corpus action are Petitioner’s Motion to
Stay and Respondent’s Motion to Dismiss, which are now fully briefed. (Dkt. 8, 11, 12,
14.) Having reviewed the record and the briefing of the parties, the Court enters the
following Order.
REVIEW OF MOTION TO DISMISS
Respondent contends that Petitioner’s Petition for Writ of Habeas Corpus should
not be stayed pending further state court action, but that it should be dismissed for failure
to meet the one-year statute of limitations deadline, because further state court action

1

Warden J. Ellis is substituted for former respondent Warden Tim Wengler. (See Dkt.

15.)
MEMORANDUM DECISION AND ORDER - 1

cannot retroactively cure the untimely filing of this action. Thus, the Court will first
consider the Motion to Dismiss before considering the Motion to Stay.
1.

Statute of Limitations 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.
Particularly, 28 U.S.C. § 2244(d)(1) provides that the one-year statute of limitations 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.
Under 28 U.S.C. § 2244(d)(1)(A), finality is marked differently for petitioners who
pursue a direct appeal, and those who do not. Gonzales v. Thaler, 132 S.Ct. 641, 653-54
(2012). If a petitioner pursues direct review of his conviction and/or sentence through the
level of the United States Supreme Court, then the judgment becomes final when that
court concludes direct appeal or denies a petition for certiorari. Id. If a petitioner pursues
direct appeal through the level of the Idaho Supreme Court, then the judgment becomes
MEMORANDUM DECISION AND ORDER - 2

final at the expiration of the time for seeking a petition for certiorari in the United States
Supreme Court (90 days after the Idaho Supreme Court issues its remittitur). See id. If a
petitioner’s appeal is heard by the Idaho Court of Appeals, and no further review is
sought, then his judgment becomes final when the Idaho Court of Appeals issues its
remittitur, marking the expiration of the time for filing a petition for review with the
Idaho Supreme Court. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007);
Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). If a petitioner does not file an
appeal at all, then his judgment of conviction becomes final 42 days after a final order or
judgment is entered, which is the expiration of the time for seeking direct review. See
I.A.R. 14(a); Wixom, 264 F.3d at 898.
AEDPA also contains a tolling provision that stops the one-year limitation period
from running during the time in “which a properly filed application for State
postconviction or other collateral review with respect to the pertinent judgment or claim
is pending.” 28 U.S.C. § 2244(d)(2). The Ninth Circuit has interpreted 28 U.S.C. §
2244(d)(2) to mean that the one-year statute of limitation is tolled during “all of the time
which a state prisoner is attempting, through proper use of state court procedure, to
exhaust state court remedies with regard to a particular post-conviction application.”
Harris v. Carter, 515 F.3d 1051, 1053 n. 3 (9th Cir. 2008) (quoting, and overruling on
other grounds, Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)).
In Wall v. Kholi, 131 S.Ct. 1278 (2011), the United States Supreme Court held that
a motion to reduce a sentence under Rhode Island state law was a “collateral review”
MEMORANDUM DECISION AND ORDER - 3

application that tolled the AEDPA statute of limitations under § 2244(d)(2). Idaho’s Rule
35 is similar to Rhode Island’s; thus, Idaho petitioners’ federal habeas corpus statute of
limitations may be tolled while Rule 35 proceedings are pending.
Once a federal statute of limitations has expired, it cannot be reinstated or
resurrected by a later-filed state court action. See Ferguson v. Palmateer, 321 F.3d 820,
822 (9th Cir. 2003) (“section 2244(d) does not permit the reinitiation of the limitations
period that has ended before the state petition was filed”); Green v. White, 223 F.3d 1001,
1003 (9th Cir. 2000) (petitioner was not entitled to tolling for state petitions filed after
federal time limitation has run).
If, after applying statutory tolling, a petitioner’s petition is deemed untimely, a
federal court can hear the claims if the petitioner can establish that “equitable tolling”
should be applied. 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 a circumstance must have caused Petitioner to be unable to file his federal Petition
in time. The petitioner bears the burden of bringing forward facts to establish a basis for
equitable tolling. United States v. Marolf, 173 F.3d 1213, 1318, n. 3 (9th Cir. 1999).
The United States Supreme Court has determined that there is an “actual
innocence” exception to the AEDPA statute of limitations. See McQuiggin v. Perkins,
133 S.Ct. 1924, 1928 (2013). To qualify for the exception, the petitioner “must show that
MEMORANDUM DECISION AND ORDER - 4

it is more likely than not that no reasonable juror would have convicted him in the light of
the new evidence.” Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
“Unexplained delay in presenting new evidence bears on the determination whether the
petitioner has made the requisite showing.” Id. at 1935. In other words, a petitioner’s
diligence should not be considered “discretely, but as part of the assessment whether
actual innocence has been convincingly shown.” Id.
2.

Background
Petitioner pleaded guilty to one count of lewd conduct with a minor under sixteen,

as defined by Idaho Code § 18-1508. An amended judgment of conviction, correcting a
clerical error, was entered on July 17, 2009. (State's Lodging A-12.) Petitioner then filed
a Rule 35 motion for reduction of his sentence on October 28, 2009, which was denied on
September 28, 2010. (State's Lodging A-15, A-18.) Petitioner did not file a direct appeal
or an appeal of the denial of the Rule 35 motion. (See State’s Lodging A-1.)
On September 15, 2011, Petitioner filed a post-conviction relief petition, which
was filed within one year of denial of the Rule 35 motion, but more than two years after
entry of the amended judgment (June 30, 2009).2 The post-conviction action was
dismissed as untimely and deemed not subject to equitable tolling on November 8, 2011.
(See State’s Lodging B-1, pp. 3-19 and 41-43.)

2

The petition is titled, “Successive Petition and Affdavit for Post Conviction Relief,” but it is not
a successive petition.
MEMORANDUM DECISION AND ORDER - 5

The Idaho Court of Appeals affirmed the dismissal on December 21, 2012. (Dkt.
3-1, pp. 5-9; State’s Lodging C-4.) Petitioner’s petition for review was denied on January
30, 2013, and the remittitur was issued the same day. (State’s Lodgings C-6, C-7.)
During the course of the first post-conviction action, on May 21, 2012, Petitioner
filed a successive post-conviction action, which was also deemed untimely and dismissed
by the state district court. (State’s Lodging D-1.) That appeal is now pending, which is the
reason for Petitioner’s request for a stay of this matter.
Petitioner filed his federal Petition for Writ of Habeas Corpus on March 14, 2013
(mailbox rule). (Dkt. 3.)
3.

Discussion
Petitioner did not appeal his July 17, 2009 amended judgment of conviction; as a

result, his federal statute of limitations began 42 days later, on August 28, 2009.
Petitioner’s Rule 35 motion for reduction of his sentence was filed on October 28, 2009,
which tolled the federal statute of limitations, at which time 60 days of the 365 days had
passed. The motion was denied on September 28, 2010. Because Petitioner did not file an
appeal, his statute of limitations began running again on September 29, 2010, with 305
days left.
Because no post-conviction action challenging Petitioner's conviction or sentence
was filed during the 305-day remaining time period, the federal statute of limitations
expired at the end of that time period, on August 1, 2011. Petitioner’s first postconviction action, filed September 15, 2011, was beyond the federal statute of limitations
MEMORANDUM DECISION AND ORDER - 6

period, and could not serve to retroactively toll the statute. In addition, the postconviction petition filing was deemed untimely, and, thus, it could not have tolled the
federal statute of limitations. Therefore Petitioner’s federal filing of March 14, 2013, was
19 months too late.
However, Petitioner’s pending state successive post-conviction action asserts that
the untimeliness of the first post-conviction action was the fault of his retained counsel,
who failed to file a timely post-conviction petition for Petitioner. Because the outcome of
the current appeal of that action may have some bearing on Petitioner’s timeliness or
equitable tolling arguments, the Court will stay this action pending the outcome of the
appeal, and will deny the motion to dismiss without prejudice. Rhines v. Weber, 544 U.S.
269 (2005), authorizes a stay of a petition containing an exhausted claim to allow a
petitioner to attempt to address further exhaustion issues in state court, and the Court
finds it appropriate to invoke the doctrine here, where Petitioner’s claim appears
exhausted but procedurally defaulted, and where state proceedings could cure or clarify
the facts relative to the procedural deficiencies on habeas corpus review.
Respondent may renew the motion to dismiss, if appropriate, and shall lodge any
further state court records, when the successive post-conviction appeal is completed and
this case is re-opened. Nothing further shall be filed in this case until one of the parties
files a motion to re-open the case at the conclusion of the Idaho Supreme Court’s review
of the pending successive post-conviction matter.

MEMORANDUM DECISION AND ORDER - 7

ORDER
IT IS ORDERED:
1.

Petitioner’s Motion to Stay (Dkt. 8) is GRANTED. The Clerk of Court shall
stay and administratively terminate this case. Administrative termination is
for internal case management purposes only, and does not affect the
interests of the parties or the filing date of the petition.

2.

Respondent’s Motion to Dismiss (Dkt. 12) is DENIED without prejudice to
renewing the motion when the state court proceedings have terminated.

3.

Either Petitioner or Respondent shall file a motion to re-open this case
within 21 days after its conclusion in the Idaho Supreme Court. No party
shall file anything additional in this matter while the case is stayed.
DATED: December 13, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 8