Nichols v. Yordy

Filing 16

MEMORANDUM DECISION AND ORDER denying 15 Respondent's MOTION to Strike Petitioner Special Traverse; granting 9 Respondent's MOTION for Summary Dismissal; dismissing 1 Petition for Writ of Habeas Corpus. The Court does not find its res olution of this habeas matter to be reasonably debatable, and a certificate of appealability will not issue. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RAY M. NICHOLS,
Case No. 1:14-cv-00376-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEITH YORDY, Warden,
Respondent.

Pending before the Court is Petitioner Ray M. Nichols’s Petition for Writ of
Habeas Corpus. 1 (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal,
arguing that the Petition is barred by the statute of limitations and that Petitioner’s claims
are procedurally defaulted. (Dkt. 9.) Petitioner has filed a response to the Motion, and
Respondent has filed a Reply. (Dkt. 12, 13.) Petitioner has also filed a “Special
Traverse,” or a sur-reply. (Dkt. 14.) Despite the fact that Petitioner filed his Special

1

In its Initial Review Order, the Court mistakenly referenced an “amended petition.” (Dkt. 5 at 3.)
This was a typographical error. No amended petition, or motion to amend, has been filed in this matter,
and the Petition at Docket No. 1 is the only Petition at issue.

MEMORANDUM DECISION AND ORDER - 1

Traverse without obtaining leave of Court, the Court has considered it, along with all of
Petitioner’s briefs in this matter, in its review of the Petition. 2
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. 8.)
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 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. 3
BACKGROUND
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, lodged by Respondent on March 2, 2015 (Dkt. 10). See Fed. R. Evid.
201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
In 1992, Petitioner was convicted by a jury in the Fourth Judicial District Court in
Ada County, Idaho, of robbery and second-degree burglary. (State’s Lodging A-1 at 4445; B-3 at 1.) He was sentenced to life without parole on the robbery count and a
concurrent term of 5 years on the second-degree burglary count. (State’s Lodging A-1 at
50.) Petitioner filed a direct appeal, and the Idaho Court of Appeals affirmed. (State’s
Lodging B-3.) Petitioner did not file a petition for review with the Idaho Supreme Court,

2

Given that Petitioner is proceeding pro se, Respondent’s Motion to Strike the Special Traverse
will be denied.

3

The Court does not address Respondent’s procedural default argument.

MEMORANDUM DECISION AND ORDER - 2

and the court of appeals issued its remittitur on November 4, 1993. (State’s Lodging B4.)
Almost 19 years later, on October 26, 2012, Petitioner filed a petition for
postconviction relief in state court. (State’s Lodging E-1 at 4-11.) The state district court
dismissed the petition as untimely under Idaho Code § 19-4902, which provides that a
postconviction petition must be filed within one year “from the expiration of the time for
appeal or from the determination of an appeal or from the determination of a proceeding
following an appeal, whichever is later.” (Id. at 19-21, 54-55.) The Idaho Court of
Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging F-5, F8.) The remittitur was issued on July 31, 2014. (State’s Lodging F-9.)
On December 31, 2012, while his postconviction proceeding was pending,
Petitioner filed a motion to correct an illegal sentence pursuant to Idaho Criminal Rule
35. (State’s Lodging C-1 at 5-12.) The state district court denied the motion, and the
Idaho Court of Appeals affirmed. (Id. at 40-41; State’s Lodging D-3.) Petitioner did not
seek review in the Idaho Supreme Court, and the court of appeals issued the remittitur on
January 22, 2014. (State’s Lodging D-4.)
Petitioner filed the instant federal habeas corpus petition, at the earliest, on August
27, 2014. 4 (Dkt. 1 at 16.) The Petition asserts two claims: (1) that his fixed life sentence
is illegal, and (2) that a jury, rather than a judge, should have determined his sentence.
4

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 - 3

Petitioner also includes various allegations of ineffective assistance of counsel, though
these allegations appear to be offered as reasons why Petitioner’s claims were not
properly exhausted, rather than as independent constitutional claims. 5 (Id. at 13-15.)
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.” The Court may also deny a habeas petition on the merits even
if it is otherwise procedurally barred. See 28 U.S.C. § 2254(b)(2) (“An application for a
writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”)
2.

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. See
28 U.S.C. § 2244(d)(1). For petitioners whose convictions became final after the date of
AEDPA’s enactment, 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

5

Even if Petitioner’s ineffective assistance allegations are treated as independent claims, the
Court’s statute of limitations analysis, as explained below, applies equally to those claims.

MEMORANDUM DECISION AND ORDER - 4

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.

28 U.S.C. § 2244(d)(1).
However, because Petitioner’s conviction became final before AEDPA’s
enactment, Petitioner “had a one-year grace period in which to file [his] petition[].”
Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). That is, a federal habeas
petition challenging Petitioner’s conviction should have been filed on or before April 24,
1997. Id. at 1246. The instant petition was filed over seventeen years later.
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 postconviction relief or other

MEMORANDUM DECISION AND ORDER - 5

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.
The time before a petitioner files an initial application for collateral review in state
court, however, does not toll the statute of limitation. Nino v. Galaza, 183 F.3d 1003,
1006 (9th Cir. 1999) (“AEDPA’s statute of 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). In addition,
AEDPA “does not permit the reinitiation of the [federal] limitations period that has ended
before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir.
2003). Further, 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).
If, after applying statutory tolling, a habeas 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. See Jorss v. Gomez, 311 F.3d 1189, 1192
(9th Cir. 2002) (“[A] court must first determine whether a petition was untimely under
the statute itself before it considers whether equitable tolling should be applied.”). 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
MEMORANDUM DECISION AND ORDER - 6

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). 6
3.

Petitioner’s Claims Are Untimely
Petitioner asserts that the statute of limitations for his claims began to run when

the Idaho Supreme Court upheld the denial of his Rule 35 motion. Petitioner is mistaken.
As noted above, any federal petition challenging Petitioner’s conviction or sentence had
to be filed by April 24, 1997. See Patterson, 251 F.3d at 1245. Further, because both
Petitioner’s Rule 35 motion and his state postconviction petition were filed long after the
one-year statute of limitations had already expired, those proceedings do not qualify for
statutory tolling. See Nino, 183 F.3d at 1006.
Finally, Petitioner has not established that he is entitled to equitable tolling that
could justify his seventeen-year delay in filing his Petition. Because Petitioner did not file
his Petition until August 27, 2014, and because he is not entitled to statutory or equitable
tolling, the Petition is barred by the statute of limitations.
ORDER
IT IS ORDERED:
1.

Respondent’s Motion to Strike Petitioner Special Traverse (Dkt. 15) is
DENIED.

6

The statute of limitations is also subject to an actual innocence exception, McQuiggin v. Perkins,
133 S. Ct. 1924, 1931-32 (2013), but Petitioner does not assert that he is factually innocent.

MEMORANDUM DECISION AND ORDER - 7

2.

Respondent’s Motion for Summary Dismissal (Dkt. 9) is GRANTED, and
the Petition (Dkt. 1) 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); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: October 13, 2015

Honorable Ronald E. Bush
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 8