Sanchez v. Yordy

Filing 18

MEMORANDUM DECISION AND ORDER Petitioner's Request for Additional Time to Respond to Motion for Summary Dismissal (Dkt. 13 ) is GRANTED. Respondent's Motion for Extension of Time to File Reply (Dkt. 16) is GRANTED. Respondent's Moti on for Summary Dismissal (Dkt. 10) is GRANTED, and the Petition is DISMISSED with prejudice as untimely. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JEREMY SANCHEZ ,
Case No. 1:15-cv-00006-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
KEITH YORDY, Warden,
Respondent.

Pending before the Court is Petitioner Jeremy Sanchez’s Petition for Writ of
Habeas Corpus. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal, arguing
that Petitioner’s claims are untimely, procedurally defaulted, and/or non-cognizable.
(Dkt. 10.) That Motion is now ripe for adjudication. (See Dkt. 15, 17.)
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).

MEMORANDUM DECISION AND ORDER - 1

Accordingly, the Court enters the following Order granting Respondent’s Motion and
dismissing the Petition with prejudice.
BACKGROUND
The facts underlying Petitioner’s conviction are set forth clearly and accurately in
State v. Sanchez, 127 P.3d 212 (Idaho Ct. App. 2005), 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 Third Judicial District in Canyon County,
Idaho, of conspiracy to commit robbery, robbery, conspiracy to commit first-degree
kidnaping, first-degree kidnaping, aggravated battery, and attempted murder.1 (State’s
Lodging B-4 at 1.) In brief, Petitioner and his accomplices robbed, kidnaped, cut,
stabbed, beat, and nearly killed a woman whose car they had forced off an interstate
highway.
Petitioner was sentenced to consecutive fixed life sentences for the robbery,
kidnaping, and conspiracy counts, as well as consecutive fixed 15-year terms for
aggravated battery and attempted first-degree murder. (Id. at 4.) Petitioner appealed.
The Idaho Court of Appeals affirmed Petitioner’s convictions and sentence in a published
opinion. The Idaho Supreme Court denied review, and the remittitur issued on December
23, 2005. (State’s Lodging B-7, B-8.)

1

Petitioner was convicted after his second trial. His first trial ended in a mistrial because the jury
could not reach a verdict. (State’s Lodging B-4 at 4.

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Petitioner signed and filed his initial petition for state postconviction relief on
October 9, 2006. (State’s Lodging C-1 at 3-30.) Counsel was appointed. (Id. at 41-42, 4445.) The state district court summarily dismissed all of Petitioner’s postconviction claims
other than his claim that trial counsel rendered ineffective assistance by “failing to
subpoena credit card records, possible security camera videos, or any eyewitnesses
relating to credit card transactions for the purpose of showing that the petitioner did not
have use of the victim’s property.” (State’s Lodging C-2 at 181; C-3 at 3.) The trial court
denied the remaining claim after an evidentiary hearing. (State’s Lodging C-3 at 4-17.)
On appeal, the Idaho Court of Appeals upheld the trial court’s denial of the
petition for postconviction relief. (State’s Lodging D-4.) Petitioner did not seek review
with the Idaho Supreme Court, and the remittitur issued on August 27, 2009. (State’s
Lodging D-5.)
On March 14, 2013—over three years later—Petitioner returned to the state
district court with a successive postconviction petition. (State’s Lodging E-1 at 4-7.)
Petitioner was again appointed counsel. (Id. at 28.) The trial court dismissed the
successive petition as untimely. (Id. at 207-10.) The Idaho Court of Appeals affirmed, the
Idaho Supreme Court denied review, and the remittitur issued on November 6, 2014.
(State’s Lodging F-4; F-7; F-8.)

MEMORANDUM DECISION AND ORDER - 3

Petitioner filed his Petition in this Court, at the earliest, on December 30, 2014.2
The Petition asserts the following claims:
Claim F(a):

Petitioner is not guilty of the crimes of which he was
convicted.

Claim F(b):

The prosecutor committed misconduct and witness
tampering.

Claim F(c):

The state knowingly introduced false evidence.

Claim F(d):

The prosecutor violated Brady v. Maryland by failing
to disclose exculpatory evidence.

Claim I(a):

Ineffective assistance of trial counsel for failing to
object to Petitioner’s 30-year consecutive sentence on
subject matter jurisdiction grounds.

Claim I(b):

Ineffective assistance of trial counsel based on
counsel’s failure to argue that Petitioner’s fixed life
term was unlawful on subject matter jurisdiction
grounds.

Claim I(c):

Ineffective assistance of trial counsel based on
counsel’s failure to argue merger or to assert a double
jeopardy violation.

Claim I(d):

Ineffective assistance of direct appeal counsel for not
raising claims of ineffective assistance of trial counsel.

Claim I(e):

Ineffective assistance of initial postconviction counsel.

Claim I(f):

Petitioner’s consecutive sentences violate the Double
Jeopardy Clause.

(See Dkt. 1.)

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.

MEMORANDUM DECISION AND ORDER - 4

DISCUSSION
Respondent argues that Petitioner’s claims are untimely, procedurally defaulted, or
non-cognizable. (Dkt. 10.) The Court agrees that the one-year statute of limitations bars
Petitioner’s claims; therefore, Respondent’s other arguments need not be addressed.
Because Petitioner (1) is entitled to statutory tolling for only a portion of the limitations
period, (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.
1.

Standards of Law
Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of 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.3 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) generally 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

The Court takes judicial notice of the records from Petitioner’s state court proceedings, lodged by
Respondent on August 24, 2015. (See Dkt. 9, 11.)
3

MEMORANDUM DECISION AND ORDER - 5

for seeking such review.” 4 28 U.S.C. § 2244(d)(1)(A); see Patterson v. Stewart, 251 F.3d
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).

4

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).

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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
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.
MEMORANDUM DECISION AND ORDER - 7

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). And 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 petitioner’s 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

MEMORANDUM DECISION AND ORDER - 8

petitioner to be unable to file his federal petition on time. Ramirez v. Yates, 571 F.3d 993,
997 (9th Cir. 2009).
In addition, 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). Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). To take advantage
of the actual innocence gateway, a petitioner must “demonstrate[] that it is more likely
than not that no reasonable juror would have found him guilty beyond a reasonable
doubt.” Stated another way, a petitioner must show that every reasonable juror would
vote to acquit.
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). 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. at 1935 (internal
quotation marks and alterations omitted).

MEMORANDUM DECISION AND ORDER - 9

2.

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

The Claims in the Petition Were Not Timely Filed
i.

Section 2244(d)(1)(A): Statute of Limitations Triggered on Date
Conviction Became Final

The statute of limitations for most of Petitioner’s claims began to run on “the date
on which the judgment became final.” 28 U.S.C. § 2244(d)(1)(A). The Idaho Supreme
Court issued the remittitur in Petitioner’s direct appeal on December 23, 2005. (State’s
Lodging B-8.) 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). Because
Petitioner did not file a petition for writ of certiorari with the United States Supreme
Court, his conviction became final 90 days later, on March 23, 2006. See U.S.S.Ct. Rule
13. The statute of limitations was triggered on that date and, absent tolling, expired one
year later.
ii.

Section 2244(d)(1)(D): Statute of Limitations Triggered When
Factual Predicate Should Have Been Discovered

Though Petitioner’s position is not entirely clear, he appears to argue that some of
his claims, including Claim F(a) (actual innocence) and at least some of his ineffective
assistance of counsel claims, are subject to a different start date for the statute of
limitations. (See Dkt. 15 at 6-7.) Petitioner states that he asserted these claims in state
court within one year “of when the evidence used to support such issues was discovered.”
(Id. at 6.) Under 28 U.S.C. § 2244(d)(1)(D), the statute of limitations for claims that were
unknowable when the petitioner’s conviction became final begins to run on “the date on

MEMORANDUM DECISION AND ORDER - 10

which the factual predicate of the claim . . . could have been discovered through the
exercise of due diligence.”
In support of his argument that his claims are timely, Petitioner has submitted the
affidavit of Kenneth W. Wurdemann, Jr., an accomplice who testified against Petitioner
at trial. In the affidavit, Wurdemann recants his trial testimony and claims that he has
never even met Petitioner. (See Dkt. 15-1.) Significantly, Petitioner presented the same
affidavit in state court during his successive postconviction proceedings. Petitioner
argued that his claims arose in November 2012 (when Petitioner learned of the existence
of the Wurdemann affidavit) or, at the latest, in February 2013 (when Petitioner obtained
a copy of the affidavit). (See State’s Lodging E-1 at 208.)
However, the state district court made a factual finding that Petitioner obtained a
copy of “an almost identical affidavit” from the same witness on September 24, 2009.
“Thus, the Petitioner had notice of both the existence of the affidavit and the contents at
that time,” yet still waited three and one-half years to file his successive postconviction
petition. (Id.) This factual finding is entitled to a presumption of correctness pursuant to
28 U.S.C. § 2254(e)(1). Because Petitioner had notice of the affidavit on September 24,
2009, the statute of limitations for any claims based on that affidavit would have expired
on September 24, 2010—long before Petitioner filed the instant federal Petition. Thus,
even if § 2244(d)(1)(D) governs the commencement of the statute of limitations for some
of Petitioner’s claims, those claims—like Petitioner’s other claims—can be timely only if
Petitioner is entitled to sufficient statutory or equitable tolling or if the miscarriage of
justice exception applies.
MEMORANDUM DECISION AND ORDER - 11

B.

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). As the Court has found, the statute of limitations for most of Petitioner’s
claims began to run on March 23, 2006. Petitioner filed his initial state postconviction
petition on October 9, 2006. Therefore, the statute of limitations ran un-tolled for 199
days of the limitations period between the date Petitioner’s convictions became final and
the date he filed his initial postconviction petition. See Nino, 183 F.3d 1006. The
limitations period was then tolled from October 9, 2006, until the Idaho Court of Appeals
issued the remittitur in Petitioner’s initial postconviction appeal on August 27, 2009.
At that point, Petitioner had 167 days remaining in the one-year limitations period
(366 days minus 199 days). Thus, his federal Petition was due on February 10, 2010 (167
days after August 27, 2009). Petitioner’s successive state postconviction petition, which
was not filed until 2013, does not serve to toll any portion of the statute of limitations, for
two independent reasons: (1) the limitations period expired before the successive petition
was filed, see Ferguson, 321 F.3d at 822, and (2) the successive petition was untimely in
any event, Pace, 544 U.S. at 414. Accordingly, even with the benefit of statutory tolling,
the December 30, 2014 Petition was filed more than three years too late.
With respect to the claims that are subject to the §2244(d)(1)(D) triggering date,
the statute of limitations began to run, as noted previously, on September 24, 2009. At
that point, Petitioner’s initial postconviction proceedings had already been completed.
MEMORANDUM DECISION AND ORDER - 12

Petitioner did not file his successive petition until March 14, 2013, long after the
subsection (d)(1)(D) limitations period expired on September 24, 2010. Therefore, even if
the successive postconviction petition had been timely, which it was not (see State’s
Lodging E-1 at 208), it could not have served to toll the limitations period.
For these reasons, all of Petitioner’s claims must be dismissed as untimely unless
Petitioner can establish that he entitled to equitable tolling or that he is actually innocent.
C.

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. “[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 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 identify any extraordinary circumstances that would justify the
application of equitable tolling in this case. Nor does Petitioner explain how any
circumstances beyond his control “made it impossible to file a petition on time.” Ramirez,
571 F.3d at 997 (emphasis added) (internal quotation marks and alteration omitted).

MEMORANDUM DECISION AND ORDER - 13

Petitioner has simply not met his burden of showing that extraordinary circumstances
beyond his control prevented him from filing a timely habeas petition.
D.

Actual Innocence

The Court now considers whether, in light of the evidence Petitioner has
submitted, every reasonable juror would vote to acquit. See McQuiggin, 133 S. Ct. at
1931-32; Lee, 653 F.3d at 937. If so, then Petitioner’s claims may be heard on the merits
despite their untimeliness.
Petitioner’s actual innocence claim is based on the affidavit of Kenneth W.
Wurdemann, Jr. (See Dkt. 15-1.) That affidavit recants Kenneth Wurdemann’s trial
testimony, which the Idaho Court of Appeals described as follows:
Kenneth testified that he had been in a bar on the night in
question, where he observed [Petitioner], John [Wurdemann],
and a woman. Kenneth asked his brother John for a ride
home, entered a vehicle with John, [Petitioner] and the
woman, and fell asleep. Kenneth testified that he awoke at a
rest stop and that [Petitioner], John and the woman entered
the restrooms while he waited at the vehicle. Kenneth
indicated that they left the rest stop, continued down the
freeway, and he fell asleep again. Kenneth awoke to find the
vehicle and the victim’s car stopped along the freeway and
his companions outside of the vehicle. Kenneth then drove
the vehicle while the others followed with the victim in her
car. Kenneth exited the freeway and parked off a dark country
road in a field. Kenneth testified that he hit the victim with a
baseball bat out of fear of repercussion from his companions
if he refused to participate. Kenneth also testified that, after
leaving the scene, [Petitioner] and John decided to return.
Kenneth testified he observed that the victim’s car was set on
fire but did not see who started it.
(State’s Lodging B-4 at 4.)

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Wurdemann now claims in his affidavit that this “entire version of [the] events
was fabricated.” (Dkt. 15-1 at ¶10.) He asserts that the prosecutor “manipulated and
coerced [him] into making detailed claims of how the attack on [the victim] occurred; and
whose idea it was to burn [her] car,” and that the prosecutor “had to recap the story three,
four, five times to make sure [Wurdemann] had it right.” (Id. at ¶¶7, 10.) Wurdemann,
who was offered a favorable plea deal in exchange for his testimony, also claims that he
received other benefits for testifying, such as being transferred to a different jail.
For several reasons, Petitioner has not met his heavy burden of establishing that, in
light of Wurdemann’s recantation, every reasonable juror would have found Petitioner
not guilty. First, the mere fact than an accomplice has recanted his trial testimony against
a defendant does not establish actual innocence. Petitioner has not proffered any reason
why Wurdemann’s affidavit should be deemed any more credible than his trial testimony.
Second, Petitioner has not offered any scientific or documentary evidence to support his
claim. Finally, Wurdemann’s testimony was not the only evidence against Petitioner. The
victim identified Petitioner, in court, as one of her attackers. (State’s Lodging B-4 at 4.)
Therefore, even if Wurdemann had not testified, there was still sufficient evidence for a
reasonable juror to conclude Petitioner was guilty beyond a reasonable doubt.
CONCLUSION
For the foregoing reasons, the Court concludes that all of the claims in the Petition
are untimely. Therefore, the Petition must be dismissed with prejudice.

MEMORANDUM DECISION AND ORDER - 15

ORDER
IT IS ORDERED:
1.

Petitioner’s Request for Additional Time to Respond to Motion for
Summary Dismissal (Dkt. 13) is GRANTED.

2.

Respondent’s Motion for Extension of Time to File Reply (Dkt. 16) is
GRANTED.

3.

Respondent’s Motion for Summary Dismissal (Dkt. 10) is GRANTED, and
the Petition is DISMISSED with prejudice as untimely.

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: January 19, 2016

Honorable Ronald E. Bush
United States Magistrate Judge

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