Oser v. Finn

Filing 23

MEMORANDUM DECISION AND ORDER Petitioner's Motion for Extension of Time (Dkt. 19 ) is GRANTED. Petitioner's response to the Motion for Summary Dismissal (Dkt. 21 ) is deemed timely. Petitioner's renewed request for appointment of co unsel or request for time to seek counsel (contained in Dkt. 21 ) is DENIED. Respondent's Motion for Summary Dismissal (Dkt. 14 ) is GRANTED, and the Petition is DISMISSED with prejudice as untimely. 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

WILLIAM A. OSER,
Case No. 1:14-cv-00527-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
BRIAN FINN,
Respondent.

Pending before the Court is Petitioner William A. Oser’s Petition for Writ of
Habeas Corpus. (Dkt. 3.) Respondent has filed a Motion for Summary Dismissal, and
Petitioner has filed a response. (Dkt. 14, 21.) Petitioner has also renewed his request for
appointment of counsel (Dkt. 18) and, in the alternative, has asked for leave to seek his
own counsel (Dkt. 21).
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
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting Motion and dismissing the
Petition with prejudice as untimely.
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Oser, Case No. 35228, Op. 362 (Idaho Ct. App. Feb. 18, 2009) (unpublished),
which is contained in the record at State’s Lodging B-4. The facts will not be repeated
here except as necessary to explain the Court’s decision.
Petitioner was convicted by a jury in the Fourth Judicial District in Ada County,
Idaho, of trafficking in methamphetamine, in violation of Idaho Code § 37-2732B(a), and
delivery of a controlled substance, in violation of Idaho Code § 37-2732(a). (State’s
Lodging B-4 at 2.) Petitioner was sentenced to twenty years in prison with six years fixed
on each count, to be served concurrently. The Idaho Court of Appeals affirmed the
convictions and sentences. The Idaho Supreme Court denied review, and the remittitur
issued on April 9, 2009. (State’s Lodging B-7, B-8.)
A few months later, on July 20, 2009, Petitioner filed a petition for state
postconviction relief. (State’s Lodging C-1 at 5-13.) After the trial court appointed
counsel for Petitioner, Petitioner filed an amended petition. (Id. at 107-13.) The trial court
dismissed the petition. (Id. at 175-80.) Petitioner appealed. (Id. at 184-86.) After
appointed counsel withdrew from representation, Petitioner voluntarily dismissed his
appeal. (State’s Lodging D-1, D-2.) The Idaho Supreme Court issued the remittitur in the
postconviction appeal on April 28, 2011. (State’s Lodging D-3.)
Less than a month later, on May 16, 2011, Petitioner filed a successive petition for
postconviction relief. (State’s Lodging E-1 at 3-20.) The trial court dismissed the petition,
holding that the successive petition was untimely and raised claims that could have been
MEMORANDUM DECISION AND ORDER - 2

raised in Petitioner’s initial postconviction application. (Id. at 52.) See Charboneau v.
State, 174 P.3d 870, 875 (Idaho 2007) (holding that successive postconviction claims
must be brought within a reasonable time “once those claims are known.”); Idaho Code §
19-4908 (“All grounds for relief available to an applicant under this act must be raised in
his original, supplemental or amended application. Any ground finally adjudicated or not
so raised, or knowingly, voluntarily and intelligently waived . . . may not be the basis for
a subsequent application, unless the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately raised in the original,
supplemental, or amended application.”).
The Idaho Court of Appeals affirmed the dismissal of Petitioner’s successive
petition, holding that the petition was untimely because Petitioner did not bring his
successive petition for nearly one year after he knew about the claims he asserted in that
petition. (State’s Lodging F-5 at 3-4.) Thus, the successive petition was not filed “within
a reasonable period of time [after] those claims were known.” (Id. at 2.) The Idaho
Supreme Court denied review, and the remittitur issued on November 26, 2012. (State’s
Lodging F-8, F-9.)
On April 8, 2013, Petitioner filed a second successive postconviction petition.
(State’s Lodging G-1 at 4-8.) The state district court summarily dismissed the petition as
untimely under Idaho law, and the Idaho Court of Appeals agreed. (State’s Lodging G-1
at 140; H-5 at 5.) The Idaho Supreme Court denied review and issued its remittitur on
June 20, 2014. (State’s Lodging H-8 & H-9.)

MEMORANDUM DECISION AND ORDER - 3

Petitioner filed his instant federal petition, at the earliest, on December 10, 2014.1
Petitioner asserts the following claims:
Claim 1:

Petitioner is actually innocent of the crimes of
conviction.

Claim 2(a):

Petitioner’s trial counsel was ineffective for failing to
file a motion to suppress, or to object to the admission
of, evidence obtained during a search of Petitioner’s
home.

Claim 2(b):

The evidence discovered in the search of Petitioner’s
home was obtained in violation of the Fourth
Amendment and should have been suppressed.

Claim 3:

Petitioner’s trial counsel was ineffective for failing (a)
to investigate the fact of the case, (b) to call necessary
witnesses, or (c) to impeach the testimony of Officer
Rob Berrier.

Claim 4:

Petitioner’s trial counsel was ineffective for failing (a)
to “lay the proper foundation for tape recording to
raid,” or (b) to “show up at several hearings and at
trial.” Petitioner also asserts a violation of his right to
an attorney of his choice.

(Pet., Dkt. 3, at 6-9.)
DISCUSSION
Respondent argues that Petitioner’s claims are barred by the one-year statute of
limitations. The Court agrees. Because Petitioner (1) is entitled only to limited statutory

1

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 - 4

tolling, (2) is not entitled to equitable tolling, and (3) has not made a colorable showing
of actual innocence, the Court will dismiss the Petition with prejudice as untimely.2
1.

Standards of Law
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 Court may also take judicial notice of relevant state court records in
determining whether to dismiss a petition. Fed. R. Evid. 201(b); Dawson v Mahoney, 451
F.3d 550, 551 (9th Cir. 2006). Where appropriate, a respondent may file a motion for
summary dismissal, rather than an answer. White v. Lewis, 874 F.2d 599, 602 (9th Cir.
1989).
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.” 3 28 U.S.C. § 2244(d)(1)(A); see Patterson v. Stewart, 251 F.3d

Because the Petition is untimely, the Court need not address Respondent’s alternative argument
that Petitioner’s claims are procedurally defaulted.
2

3

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

MEMORANDUM DECISION AND ORDER - 5

1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to the AEDPA
statute of limitations, which means that the calculation excludes the day the conviction
became final, meaning that the statute of limitations period actually consists of 366 days).
Thus, the first step in a statute of limitations analysis is determining the date on which the
petitioner’s conviction became final.
Direct review of a conviction includes the opportunity to file a petition for a writ
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).
Idaho Appellate Rule 14 provides that an appeal from the district court must be
filed within 42 days from the date of an appealable order or judgment. Idaho Appellate
Rule 118 provides that a petition for review to request that the Idaho Supreme Court
review an opinion or order of the Court of Appeals must be filed within 21 days “after the
announcement of the opinion or order, or after the announcement of an order denying
rehearing, or after the announcement of an opinion on rehearing or after an opinion is

(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 - 6

modified without rehearing in a manner other than to correct a clerical error.” United
States Supreme Court Rule 13 provides that a petition for writ of certiorari must be filed
with the United States Supreme Court within 90 days of a judgment entered by a state
court of last resort. Hence, the failure to file a notice of appeal, petition for review, or
petition for writ of certiorari within the applicable time period triggers finality for
purposes of § 2244(d)(1)(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). Thus, to the
extent that a petitioner properly filed an application for postconviction 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.
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,
MEMORANDUM DECISION AND ORDER - 7

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).
Finally, 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 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
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).
Moreover, the statute of limitations is subject to an actual innocence exception.
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013). Actual innocence means “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624
(1998). If a petitioner “demonstrates that it is more likely than not that no reasonable
MEMORANDUM DECISION AND ORDER - 8

juror would have found him guilty beyond a reasonable doubt, the petitioner may . . .
have his constitutional claims heard on the merits,” even if the petition is otherwise timebarred. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). In other words, a
petitioner can take advantage of the actual innocence exception to the statute of
limitations bar only if the petitioner establishes it is more likely than not that every
reasonable juror would vote to acquit.
Although a petitioner asserting actual innocence, as opposed to equitable tolling,
to overcome the statute of limitations need not prove diligence, “a court may consider
how the timing of the submission and the likely credibility of a petitioner’s affiants bear
on the probable reliability of evidence of actual innocence.” McQuiggen, 133 S. Ct. 1935
(internal quotation marks and alterations omitted).
2.

The Petition Is Barred by the Statute of Limitations
A.

The Petition Was Not Timely Filed

Because Petitioner did not file a petition for certiorari with the United States
Supreme Court, his conviction became final on July 8, 2009—90 days after the Idaho
Supreme Court issued its remittitur in Petitioner’s direct appeal on April 9, 2009. See
U.S. S. Ct. Rule 13. Therefore, absent tolling, the statute of limitations period would have
expired one year later, on July 8, 2010. Petitioner filed his Petition in this Court, at the
earliest, on December 10, 2014. Therefore, the claims in the Petition are barred by
AEDPA’s one-year statute of limitations, unless Petitioner establishes that he is entitled
to statutory or equitable tolling or that he is actually innocent.

MEMORANDUM DECISION AND ORDER - 9

B.

Petitioner Is Entitled to Limited 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 filed his initial state postconviction petition on July 20, 2009. At
that point, 12 days of the one-year limitations period had run from the date Petitioner’s
conviction became final. The Idaho Supreme Court later granted Petitioner’s motion to
voluntarily dismiss his postconviction appeal. Because that court issued its remittitur on
April 28, 2011, the statute of limitation began running again on that date. See Jakoski v.
State, 32 P.3d 672, 679 (Idaho Ct. App. 2001) (stating that decisions of the Idaho
Supreme Court are final when the remittitur is issued). Petitioner therefore had 354 days
remaining within which to file his federal petition (366 days minus 12 days).
Because the Idaho courts held that both of Petitioner’s successive state
postconviction petitions were untimely, those petitions were not “properly filed” and
cannot serve as a basis for statutory tolling. Pace, 544 U.S. at 414. Therefore, AEDPA’s
statute of limitations expired on April 16, 2012 (354 days after April 28, 2011), and
Petitioner’s December 10, 2014 federal habeas Petition was filed over two years too late.
Petitioner claims that Idaho’s time period for filing a successive petition—“a
reasonable period of time” after the successive claims are known, see Charboneau, 174
P.3d at 875—is too indeterminate to serve as an adequate basis for a timeliness
determination. (Dkt. 21 at 4-5.) However, the Supreme Court has already determined that
a similarly indeterminate “reasonableness” standard for the timely filing of
MEMORANDUM DECISION AND ORDER - 10

postconviction petitions in state court can be applied in the context of statutory tolling.
See Carey v. Saffold, 536 U.S. 214, 221-22 (2002) (describing California’s “original
writ” system as providing an “indeterminate” timeliness rule and applying that rule in
calculating statutory tolling under AEDPA). Therefore, Petitioner cannot escape the fact
that the Idaho courts found his two successive postconviction petitions to be untimely.
See Evans v. Chavis, 546 U.S. 189, 201 (2006) (holding that the California courts applied
a timeliness bar to postconviction petition and found the petitioner’s unexplained sixmonth delay unreasonable). Neither of Petitioner’s two successive postconviction
petitions tolled the statute of limitation pursuant to §2244(d)(2). Therefore, statutory
tolling is insufficient to render the Petition timely.
C.

Equitable Tolling

The Court now considers whether equitable tolling may apply to toll the time
period between the date when the Petition was due (April 16, 2012) and the date the
Petition was actually filed (December 10, 2014). 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.
“[T]he threshold necessary to trigger equitable tolling under AEDPA is very high, lest the
exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)
(internal quotation marks and alteration omitted). As to the diligence issue, the Supreme
Court has held that a petitioner who “waited years, without any valid justification” to
bring his postconviction claims in state court, and then waited “five more months after

MEMORANDUM DECISION AND ORDER - 11

his [postconviction] proceedings became final before deciding to seek relief in federal
court,” had not acted diligently in pursuing his rights. Pace, 544 U.S. at 419.
Petitioner does not explain how any adverse circumstances “made it impossible to
file [his] petition on time.” Ramirez, 571 F.3d at 997 (emphasis added) (internal quotation
marks and alteration omitted). Petitioner has simply not met his burden of showing that
extraordinary circumstances beyond his control prevented him from filing a timely
habeas petition. Therefore, equitable tolling does not apply.
D.

Actual Innocence

Petitioner has failed to meet the extraordinarily stringent standard for actual
innocence. He has not presented any credible evidence from which the Court can infer
that no reasonable juror would have found him guilty. Thus, Petitioner cannot take
advantage of the actual innocence gateway, and the Petition must be dismissed as
untimely.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Extension of Time (Dkt. 19) is GRANTED.
Petitioner’s response to the Motion for Summary Dismissal (Dkt. 21) is
deemed timely.

2.

Petitioner’s renewed request for appointment of counsel or request for time
to seek counsel (contained in Dkt. 21) is DENIED.

3.

Respondent’s Motion for Summary Dismissal (Dkt. 14) is GRANTED, and
the Petition is DISMISSED with prejudice as untimely.

MEMORANDUM DECISION AND ORDER - 12

4.

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: December 22, 2015

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 13