Martin v. Ramirez

Filing 21

MEMORANDUM DECISION AND ORDER Respondent's Motion for Summary Dismissal (Dkt. 15 ) is GRANTED. The Petition for Writ of Habeas Corpus (Dkt. 3 ) is DISMISSED with prejudice. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JEFFERY EUGENE MARTIN,
Petitioner,
vs.

Case No. 1:14-cv-00435-CWD
MEMORANDUM DECISION AND
ORDER

WARDEN AL RAMIREZ,
Respondent.

Pending before the Court is Respondent’s Motion for Summary Dismissal,
requesting dismissal of the Petition for Writ of Habeas Corpus on the grounds of
untimeliness and procedural default. (Dkt. 15.) Petitioner has filed a Response, and the
motion is now fully briefed. (Dkts. 17, 18.)1 The Court takes judicial notice of the records
from Petitioner’s state court proceedings that have been lodged by the parties. See Fed. R.
Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
All 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. 13.)
Having reviewed the record, including the state court record, the Court concludes that
oral argument is unnecessary, and enters this order dismissing the Petition with prejudice.

1

Petitioner has completed his sentence and was discharged on September 29, 2015. His Petition remains
at issue and is not moot because he filed it prior to completing his sentence and because negative
collateral consequences arise from a felony conviction.
MEMORANDUM DECISION AND ORDER - 1

REVIEW OF RESPONDENT’S MOTION TO DISMISS
1. Standard of Law Governing Dismissal on Statute of Limitation Grounds
When a petitioner’s compliance with threshold procedural requirements is at issue,
a respondent may file a motion for summary dismissal, rather than an answer. White v.
Lewis, 874 F.2d 599, 602 (9th Cir. 1989). Rule 4 of the Rules Governing § 2254 Cases
authorizes the Court to summarily dismiss a petition for writ of habeas corpus 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 Antiterrorism and Effective Death Penalty Act (AEDPA) requires a petitioner
to seek federal habeas corpus relief within one year from “the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 2 28 U.S.C. § 2244(d)(1)(A). One year means 366 days, for
example, from January 1, 2000, to January 1, 2001. See Patterson v. Stewart, 251 F.3d

2

Several other triggering events for the statute of limitations exist—but are less common—and are
set forth in subsections 2244(d)(1)(B)-(D):
(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.

28 U.S.C. § 2244(d)(1).

MEMORANDUM DECISION AND ORDER - 2

1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA,
where the calculation excludes the day the conviction became final).
Under 28 U.S.C. § 2244(d)(1)(A), the date of “finality” that begins the one-year
time period is marked as follows, depending on how far a petitioner pursues his claim:
Action Taken

Finality Occurs

No appeal is filed after state district court order or judgment
(see Idaho Appellate Rule 14)

42 days later

Appeal is filed and Idaho Court of Appeals issues a decision,
but no petition for review is filed with the Idaho Supreme Court
(see Idaho Appellate Rule 118)
Appeal is filed and Idaho Supreme Court issues a decision or
denies a petition for review of an Idaho Court of Appeals decision,
and Petitioner does not file a petition for writ of certiorari with the
United States Supreme Court
(see United States Supreme Court Rule 13)
After Idaho Supreme Court issues a decision or denies a petition
for review, Petitioner files a petition for writ of certiorari to the
United States Supreme Court, and the petition is denied

21 days later

90 days later

date of denial

In each instance above, “finality” is measured from entry of the final judgment or
order, not from a remittitur or mandate, which are mere formalities. Gonzales v. Thaler,
132 S.Ct. 641, 653 (2012); Clay v. United States, 537 U.S. 522, 529 (2003); Wixom v.
Washington, 264 F.3d 894, 898 n.4 (9th Cir. 2001).
AEDPA also contains a tolling provision that stops or suspends the one-year
limitations period from running during the time in “which a properly filed application for
State postconviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2).3

3

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” application that tolled the AEDPA statute
MEMORANDUM DECISION AND ORDER - 3

Because this particular statutory provision applies only to “pending” actions, the added
time periods associated with the calculation of finality after direct appeal are not applied
to extend the tolling periods for postconviction actions. In addition, the statute of
limitations is not tolled between the date the direct appeal is “final” and the filing of a
proper postconviction application, or between postconviction finality and any successive
collateral review petition. Id. Each time statutory tolling ends, the statute of limitations
does not restart at one year, but begins running at the place where it stopped before the
postconviction action was filed.
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”).
2. Procedural Background
Petitioner was convicted by jury of possession of a controlled substance in
Criminal Case No. H0501565, in Ada County, Idaho. He filed a direct appeal, which
concluded on October 30, 2008. (State’s Lodging B-1 to B-13.) Eight months later, on
June 30, 2009 (mailbox rule date), Petitioner filed a state post-conviction petition. After
denial of the post-conviction petition, Petitioner filed an appeal, which concluded on
February 11, 2014, after nearly five years. (State’s Lodgings C-1 to D-8.)

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.
MEMORANDUM DECISION AND ORDER - 4

Eight months later, on October 9, 2014, Petitioner filed his federal petition in this
action. The petition is not dated, but the “IMSI Legal Mail Log” shows that the petition
was received by prison officials for mailing on October 7, 2014. (Dkt. 17-1, p. 10.)
3. Discussion of Timeliness of Filing and Statutory Tolling
Petitioner’s direct appeal concluded in the Idaho Supreme Court on October 27,
2008. Petitioner did not file a petition for writ of certiorari with the United States
Supreme Court. As a result, Petitioner’s judgment became final at the end of the 90-day
time period for filing a petition, on January 25, 2009. Petitioner had 366 days, until
January 25, 2010, in which to file his federal petition under 28 U.S.C. § 2244.
Petitioner’s federal statute of limitations ran for 155 days, until it was statutorily
tolled by the filing of his state post-conviction petition on June 27, 2009 (assuming,
without deciding, that the mailbox rule date applies). When that action concluded in the
Idaho Supreme Court, on February 11, 2014, the federal statute of limitations began
running the next day, with 211 days left (366 – 155 = 211). The statute of limitations
period expired after 211 days, on September 10, 2014, nearly one month before Petitioner
filed his federal petition on October 7, 2014 (mail box rule date).4
Petitioner newly argues that his statutory tolling has not yet expired, because he
filed a motion for a new trial in his state criminal case on July 5, 2011, which was never
ruled upon (State’s Lodging A-7). However, the record does not support his contention.
Petitioner was transported to state court on December 9, 2011, for adjudication of the
4

While Petitioner filed other state court actions during the pendency of the state-post-conviction matter, they are not
included in the analysis because they were concluded prior to the end of the state post-conviction matter, and are
thus not relevant.

MEMORANDUM DECISION AND ORDER - 5

motion for new trial. (State’s Lodging A-8.) Petitioner was present in person with
counsel, Teresa Martin. (State’s Lodging A-9.) Both sides were given an opportunity to
address the motion. Judge Hansen observed that the motion appeared untimely, defense
counsel responded, and the State’s attorney argued the motion was untimely and asked
for it to be dismissed. Judge Hansen then denied the motion, as reflected on the brief
written record of the hearing proceedings. (State’s Lodging A-9.) The fact that there is no
separate written order does not mean that the motion is still pending and that the statute
of limitations remained tolled through the date Petitioner filed his federal Petition. This
argument is without merit.
4. Standard of Law Governing Equitable Tolling
If a 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, the Supreme 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.” 544
U.S. 408, 418 (2005). In addition, there must be a causal link between the lateness and
the extraordinary circumstances. See Bryant v. Schriro, 499 F.3d 1056, 1061 (9th Cir.
2007) (A petitioner must show that his untimeliness was caused by an external
impediment and not by his own lack of diligence.). 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).

MEMORANDUM DECISION AND ORDER - 6

5. Discussion of Equitable Tolling Arguments
Petitioner brings forward several arguments to excuse the untimely filing of his
Petition. First, he alleges that prison personnel lost several of his state criminal files in
November 2012. At that time he was attempting to prepare a federal habeas corpus
petition, but could not do so without the files. (Dkt. 17-1, p. 1.) This was during the time
that his state post-conviction action was pending (State’s Lodgings D-1, D-3), a phase of
his case that was handled by Attorney Deborah Whipple.
Petitioner filed a federal habeas corpus petition on December 6, 2012, to contest
the conditions of his confinement, rather than the fact of his conviction and sentence.
(See Case No. 3:12-cv-00598-CWD, Martin v. Carlin.) With the petition, he filed a
motion requesting that the Court issue a preliminary injunction requiring the Idaho
Department of Correction to locate and return his legal documentation to him.
Petitioner’s case was dismissed on April 11, 2013, for failure to state a habeas corpus
claim upon which relief can be granted, because the type of claims he raised were more
appropriate for a civil rights action. Petitioner was instructed to file a civil rights
complaint if he desired to pursue his claims. (See Dkt. 9, in Case No. 3:12-cv-00598CWD.) This time period was a year and a half before the federal filing deadline.
On August 27, 2013, Petitioner acknowledged that he was on a “strict time
limitation” regarding the filing of his federal habeas corpus petition. (Dkt. 18-1,
Appendix A, Inmate Activity Log, p. 7.) He requested permission to have lined paper
sent to him by his family. In response, the prison paralegal notified him that the Court
does not require any specific type of paper or typing, and that forms were available at the
MEMORANDUM DECISION AND ORDER - 7

legal resource center. (Id.) No mention is made of any missing legal files by this point in
time. At the time of the request and response, Petitioner still had approximately one year
to prepare his petition.
Petitioner has not produced any evidence showing any of the following: (1) that
his legal files were not located and returned by the prison in time for him to meet the
filing date of September 10, 2014; (2) that he requested a copy of his files from his
attorney, Ms. Whipple; (3) that he requested a copy of his files from the state court under
its indigent status procedures; or (4) that he filed a state or federal action to obtain return
or replacement of the files if he did not receive them. Because Petitioner does not show
that the files were not returned or that he pursued their return with diligence, and because
Petitioner had, at that time, ample time to pursue their return and prepare his federal
habeas corpus petition before the deadline, these facts do not warrant equitable tolling.
Petitioner next alleges that his legal work was withheld from him for 49 days in
March and April 2014. In Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002), the United States
Court of Appeals for the Ninth Circuit held that the prisoner was entitled to equitable
tolling under circumstances where he was denied access to his legal files for 82 days at
the end of the tolling period during a temporary transfer from prison to another district to
testify in unrelated case and the law on the proper method for tolling was unsettled.
Here, however, Petitioner had ample time after April 2014 to complete and file his
petition, especially given that he had been working on his petition since 2012 or 2013.
Petitioner’s lack of legal materials for about one month and a half during a time period
well before the filing deadline did not create an “impossibility” or an “unusual obstacle
MEMORANDUM DECISION AND ORDER - 8

beyond [his] control” that was so long or so close to the end of the limitations period such
that he could not file the federal petition in time. See Lott, 304 F.3d at 924. Rather,
Petitioner speaks only in generalities and does not tie any particular missing items or time
periods to missing the statute of limitations.
Petitioner also provides a concern form he wrote to Warden Ramirez on August
13, 2015, requesting a mail log to show the mailing date of the federal petition. Petitioner
wrote that, when he submitted a “federal habeas corpus” to paralegal Shedd in “late
September or early October of 2014,” the last four pages of the submission and the
signature page were missing on his returned copy. Petitioner has also provided this Court
with a letter he wrote to Clerk of Court Elizabeth Smith on November 24, 2014, which
complains that prison staff would not copy his exhibits to legal documents and inquiring
about a motion for specific performance he filed in a previous civil rights case, Case No.
02-00048-MHW (BLW). The circumstances cited in these written complaints do not
describe events that are causally linked to the late filing of the federal petition.
6.

Standard of Law Governing Actual Innocence Exception

The United States Supreme Court has determined that there is an “actual
innocence” exception to the AEDPA statute of limitations, and that the exception applies
where a petitioner meets the rigorous actual innocence standard of Schlup v. Delo, 513
U.S. 298 (1995). McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). To make a
showing of actual innocence under Schlup, a petitioner must present new evidence

MEMORANDUM DECISION AND ORDER - 9

showing that “‘it is more likely than not that no reasonable juror would have convicted
[the petitioner].’” Perkins, 133 S.Ct. at 1933 (quoting Schlup, 513 U.S. at 329).5
Types of evidence “which may establish factual innocence include credible
declarations of guilt by another, see Sawyer v. Whitley, 505 U.S. 333, 340 (1992),
trustworthy eyewitness accounts, see Schlup, 513 U.S. at 331, and exculpatory scientific
evidence.” Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996). The evidence supporting
the actual innocence claim must be “newly presented” evidence of actual innocence,
meaning that “it was not introduced to the jury at trial”; it need not be “newly
discovered,” meaning that it could have been available to the defendant during his trial,
though it was not presented to the jury. Griffin v. Johnson, 350 F.3d 956, 962–63 (9th
Cir. 2013).
This exception is to be applied only in the “extraordinary” or “extremely rare”
case. House v. Bell, 547 U.S. 518, 538 (2006); Schlup, 513 U.S. at 320-21. In Larsen v.
Soto, the United States Court of Appeals for the Ninth Circuit summarized the difference
between those cases that meet the high actual innocence standard, and those that do not:
The Schlup standard “is demanding,” Perkins, 133 S.Ct. at 1936, and
precedents holding that a habeas petitioner satisfied its strictures have
typically involved dramatic new evidence of innocence. In House, for
instance, DNA evidence established that semen found on a murder victim
came from the victim’s husband and not from House, see 547 U.S. at 540–
41, 126 S.Ct. 2064, and there was evidence that the husband had a history
of violence toward his wife, raising an inference that he “could have been
the murderer,” id. at 548, 126 S.Ct. 2064. In Carriger, the prosecution's
5

Where the petitioner pleaded guilty and did not have the evidence in his case evaluated by a jury, he
must show that, based on all of the evidence, “it is more likely than not that no reasonable juror would
have found Petitioner guilty. . . .” Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001), citing
Schlup v. Delo, 513 U.S. 298, 327 (1995).
MEMORANDUM DECISION AND ORDER - 10

chief trial witness had confessed in open court that he himself (and not
Carriger) had committed the murder for which Carriger had been convicted.
See 132 F.3d at 471–72. In contrast, we have denied access to the Schlup
gateway where a petitioner’s evidence of innocence was merely cumulative
or speculative or was insufficient to overcome otherwise convincing proof
of guilt. See, e.g., Lee v. Lampert, 653 F.3d 929, 943–46 (9th Cir. 2011);
Sistrunk v. Armenakis, 292 F.3d 669, 675–77 (9th Cir. 2002). Thus, to
satisfy Schlup, the petitioner's new evidence must convincingly undermine
the State’s case. However, definitive, affirmative proof of innocence is not
strictly required. As we explained in Carriger, a Schlup claim “is
procedural, not substantive”: a petitioner’s new evidence must be sufficient
to undermine a court’s confidence in his conviction, but not to erase any
possibility of guilt. 132 F.3d at 478.
742 F.3d 1083, 1095-96 (9th Cir. 2013).
“Unexplained delay in presenting new evidence bears on the determination
whether the petitioner has made the requisite showing.” McQuiggin, 133 S.Ct. 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.
7. Discussion of Actual Innocence
Petitioner alleges that he is factually innocent, because he was unaware of any
illegal items in the car he was driving at the time of his arrest. He asserts that his
conviction was based upon the perjured testimony of State witnesses and the false
statements of the prosecutor. He argues that Christina Maxwell, his girlfriend who owned
the car, was working as an agent of the State and received dismissal of numerous
mandatory sentences in exchange for aiding in Petitioner’s arrest and conviction.
Petitioner claims that an estranged friend had hidden the illegal items in the car, and he
had no knowledge of, or intent to possess, them. Petitioner asserts that the officer who
stopped him was positioned beside him in traffic, not behind him, and could not have
MEMORANDUM DECISION AND ORDER - 11

seen his license plate, and that the officer’s excuse for stopping him—that he was driving
a car with license plates that were not registered to that vehicle—was untrue and that he
was stopped as part of a conspiracy by Maxwell, the estranged friend, and officers to
arrest him on false charges.
However, Petitioner made most of these arguments to the jury during his criminal
trial, and so they are not “new.” In addition, during his trial testimony, Petitioner
admitted more than sufficient facts supporting the elements of the crime. (State’s
Lodging A-3.) Where Petitioner denied certain facts at trial, such as whether he knew the
drug kit was in the car he was driving, and where he cross-examined witnesses on his
theories, it is obvious that the jury made a credibility determination based on the
testimony and demeanor of Petitioner and the adverse witnesses.
The officers testified that, when Petitioner was stopped in the car with the wrong
license plates on it, he had no driver’s license, but instead produced an Idaho Department
of Correction identification card, and stated that he had just been released from prison
after ten years. When asked whether he had any weapons, he told the officer he had a
knife. The officer then frisked Petitioner. A number of used syringes were found in his
pocket. Petitioner claimed that the syringes were insulin needles used to inject oil into a
spray painter at Petitioner’s place of work. Officers asked Petitioner permission to search
the vehicle, and Petitioner assented. A second officer on the scene found a black pouch
containing baggies of methamphetamine, a spoon, some cotton, and another syringe. The
officers testified that Petitioner admitted to officers that the pouch belonged to him, and

MEMORANDUM DECISION AND ORDER - 12

when asked why he was driving around with methamphetamine, he responded, “Because
I’m a f---ing idiot.”
At trial, Petitioner admitted to making the statement, but he denied the officer’s
representation that Petitioner had admitted the bag was his at the scene of the arrest.
Petitioner testified at trial that the bag belonged to his friend, who hid the bag with a
motive of revenge, and Petitioner denied having knowledge that it was under the seat, but
said he took responsibility for it at the scene because he loved Maxwell (the car owner)
and didn’t want her to be in trouble. However, Petitioner admitted at trial that he used
methamphetamine fairly regularly, that he himself did not like injecting himself with the
type of flexible needles found in the kit (preferring a different method), and that he had
used the syringe found in the kit to inject methamphetamine into his girlfriend’s anus
prior to the date of the arrest.
Petitioner brings forward other arguments that do not meet the standard for actual
innocence. For example, while the state forensics laboratory policies and practices
regarding retention of undocumented controlled substances generally have been called
into question by official reports of employees retaining and hiding from inspectors larger
amounts of controlled substances than they were permitted to have on hand, which they
allegedly used as display samples, Petitioner has not shown that these wrongs affected his
particular case such that it renders him actually innocent.
Petitioner also requested DNA testing of the syringe in the bag. In light of his own
testimony at trial that he handled the syringe when injecting his girlfriend with the

MEMORANDUM DECISION AND ORDER - 13

substance, Petitioner has not shown how DNA testing would have aided his case or
would prove his innocence on the possession charge.
8. Conclusion
The Petition in this case was filed beyond the statute of limitations deadline.
Petitioner has not presented adequate facts to show that the equitable tolling or actual
innocence exceptions apply to excuse the late filing. The Court does not reach the
procedural default arguments. Based on the foregoing, the Petition will be dismissed with
prejudice.
ORDER
IT IS ORDERED:
1. Respondent’s Motion for Summary Dismissal (Dkt. 15) is GRANTED.
2. The Petition for Writ of Habeas Corpus (Dkt. 3) 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); 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.

MEMORANDUM DECISION AND ORDER - 14

DATED: February 4, 2016

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 15