Joyner v. IDOC
MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Respondents Motion for Extension of Time to File Answer or Pre-Answer Motion (Dkt. 13 ) is GRANTED. 2. Respondents Motion for Summary Dismissal (Dkt. 15 ) is GRANTED. The Petition (Dkt. 3 ) is DISM ISSED with prejudice. 3. Petitioners Motion for Appointment of Counsel (Dkt. 17 ) is DENIED. 4. 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 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
MIGUEL CHARLES JOYNER,
Case No. 1:15-cv-00489-REB
Petitioner Miguel Charles Joyner filed a Petition for Writ of Habeas Corpus
challenging his state court conviction and sentence. (Dkt. 3.) 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. 11.)
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by the parties. See Fed. R. Evid. 201(b); Dawson v.
Mahoney, 451 F.3d 550, 551 (9th Cir. 2006). 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
MEMORANDUM DECISION AND ORDER - 1
unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
REVIEW OF PETITIONER’S MOTION
FOR APPOINTMENT OF COUNSEL
Petitioner has filed a Motion for Appointment of Counsel. (Dkt. 20.) He provides
no particular reasons in support of his motion, but the Court has considered that
Petitioner is not a lawyer and has few legal resources available to him in prison.
There is no constitutional right to counsel in a habeas corpus action. Coleman v.
Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as
provided by rule, if counsel is necessary for effective discovery or if an evidentiary
hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section
2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an
indigent petitioner in any case where required by the interests of justice. 28 U.S.C. §
2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a
petitioner’s ability to articulate his claims in light of the complexity of the legal issues
and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th
Preliminary procedural questions are currently at issue that require attention to
factual matters, rather than legal matters. Petitioner has been notified that he must
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provide adequate reason for the late filing of his Petition. See Dkts. 15-1 (explaining
equitable tolling and actual innocence exceptions to statute of limitations) & 16 (notice of
summary judgment and dismissal rule requirements). Presently, neither discovery nor an
evidentiary hearing is needed. Therefore, Petitioner has not met the standards for
appointment of counsel, and the motion will be denied.
REVIEW OF MOTION FOR SUMMARY DISMISSAL
Standard of Law
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
MEMORANDUM DECISION AND ORDER - 3
seeking such review.”1 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
1243, 1246 (9th Cir. 2001) (applying Federal Rule of Civil Procedure 6(a) to AEDPA).
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:
No appeal is filed after state district court order or judgment
42 days later, see
Appeal is filed and Idaho Court of Appeals issues a
decision, but no petition for review is filed with the Idaho
21 days later, see
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
90 days later, see
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
Date of denial
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).
MEMORANDUM DECISION AND ORDER - 4
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, the petition is
granted, and the United States Supreme Court issues a
Date of decision
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).
Because this particular statutory provision applies only to “pending” actions, the
additional 21-, 42- and 90-day time periods associated with the calculation of finality
after direct appeal are not applied to extend the tolling periods for post-conviction
actions. However, unlike direct appeal “finality,” the term “pending” does extend through
the date of the remittitur.2
See Lawrence v. Florida, 549 U.S. 327, 337 (2007). “Pending” is determined according to each
particular state’s law. In Idaho, an appellate case remains pending until a remittitur is issued. See Cochran
v. State, 133 Idaho 205, 206, 984 P.2d 128, 129 (Idaho Ct. App. 1999).
MEMORANDUM DECISION AND ORDER - 5
The federal statute is not tolled between the date the direct appeal is “final” and
the filing of a proper post-conviction application, or between post-conviction 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 post-conviction 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”).
Petitioner originally was charged with the felony crimes of attempted
strangulation, domestic violence, and violation of a no-contact order in a criminal action
in the Fourth Judicial District Court in Ada County, Idaho. When he asserted his right to
a speedy trial, and that issue presented novel and complex questions that could not be
briefed before the speedy trial time period expired, the state district court permitted the
State to dismiss the charges and refile them.
On January 27, 2009, the State refiled the felony charges, along with a second
domestic violence charge. Petitioner moved to dismiss the new charges on speedy trial
grounds, but the state district court denied the motion, and the case proceeded to trial.
MEMORANDUM DECISION AND ORDER - 6
After a jury trial, Petitioner was convicted of one count of domestic battery, one
count of attempted strangulation, and of being a persistent violator. His judgment of
conviction was entered on July 30, 2009, and he received prison sentences totaling 10
years determinate, with life indeterminate. He filed a direct appeal, heard as a
consolidated action of his first and second sets of charges, which was unsuccessful. He
also received no relief in his post-conviction actions.
The statute of limitations analysis begins with the Idaho Supreme Court’s denial of
Petitioner’s petition for review on direct appeal on September 21, 2011. (State’s Lodging
B-9.) Petitioner did not file a petition for writ of certiorari with the United States
Supreme Court; therefore, his judgment of conviction became final 90 days later, on
December 20, 2011.
The federal statute of limitations began on December 20, 2011, and continued
running for 107 days until Petitioner filed his state post-conviction petition on April 6,
2012 (mailbox rule date). (State’s Lodging C-1.) The statute was tolled during the
pendency of that action. The post-conviction action ended on October 14, 2014, when the
Idaho Court of Appeals entered the remittitur following its decision affirming the
dismissal of the post-conviction action. (State’s Lodging D-7, D-8.) Petitioner did not file
a petition for review before the Idaho Supreme Court.
MEMORANDUM DECISION AND ORDER - 7
The federal statute began running again on October 15, 2014, with 258 days
remaining, and it expired on June 30, 2015. Petitioner’s federal Petition for Writ of
Habeas Corpus was filed on October 14, 2015 (mailbox rule), several months too late.
Unless Petitioner shows that equitable tolling applies, or that he is actually innocent, his
Petition must be dismissed with prejudice as untimely.
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) (holding that 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).
Petitioner’s Response simply denies the assertion that his case was filed too late.
(Dkt. 18, p. 6.) He filed his federal Petition exactly one year from the date his last state
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court action concluded and believes that was a timely filing. However, he likely did not
realize that the time between the conclusion of direct appeal and the filing of his state
post-conviction petition also counted toward the federal limitations period, and that the
limitations period did not restart at one year upon conclusion of the post-conviction
Ignorance of the law without more, however, is not grounds for equitable tolling.
Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (a petitioner’s “inability
correctly to calculate the limitations period” and “lack of legal sophistication” are not
“extraordinary circumstance[s] warranting equitable tolling”)). This was the only
potential factual basis for equitable tolling that appeared obvious from the record.
Petitioner otherwise has chosen not to make an equitable tolling argument.
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). “‘Actual innocence
means factual innocence, and not mere legal insufficiency.’” Marrero v. Ives, 682 F.3d
1190 (9th Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
MEMORANDUM DECISION AND ORDER - 9
To make a showing of actual innocence under Schlup, a Petitioner must present
new evidence 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). 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.
Petitioner has made several arguments based on legal innocence: (1) the charges
should not have been refiled because that violated his right to a speedy trial; and (2)
improper and biased statements from jurors that were made during voir dire allegedly
contaminating the jury pool. However, challenges to legal insufficiencies are not grounds
for a showing of actual innocence.
Petitioner also offers the following facts to show his innocence:
If I were able to take the stand I would’ve shown that there was no way I
did anything to Ms. Lard because I was never in the house with her. And I
was never placed in that house with her when I got home. No one was
there. I showered, ate cold pizza, grabbed extra phone and walked to
Overland Bar, where I was arrested. That’s clear across town from Cole
Road and Ustick. This alone would have raised reasonable doubt in a case
that’s basically a he said she said.
(Dkt. 18, p. 3 (grammar and punctuation regularized).) He further argues that the officer
who responded to the scene had no medical training to identify strangulation marks on a
victim’s neck and should not have been permitted to testify about the neck bruising.
MEMORANDUM DECISION AND ORDER - 10
Petitioner is correct that there were no witnesses to what happened when he
arrived home. Even had Petitioner testified, the jury would have had two additional
factors to consider in deciding whether Petitioner was guilty beyond a reasonable doubt:
(1) credibility of Ms. Lard and Petitioner; and (2) circumstantial evidence. As to
credibility, had Petitioner testified, evidence of his prior convictions could have been
admitted to impeach his credibility. The jury also would have questioned Petitioner’s
story that he “grabbed extra phone” before leaving to go to the bar, because, normally,
two people living together would have only two phones—one for each of them—not “an
The State had the following factors in its favor: (1) Ms. Lard told a story that made
sense: she was tired of paying for everything for Petitioner without him contributing
financially to their household, and she suspected him of having a relationship with
another woman (which was confirmed at sentencing), and so she had packed up his few
belongings and had planned to ask him to leave, but Petitioner was caught off-guard by
that, especially Ms. Lard’s final act of picking up an urn containing his deceased
grandmother’s ashes and telling him she didn’t want it in the house any longer; (2)
photographs showed Ms. Lard had bruising on her body corresponding to her description
of the physical tussle and strangulation she alleged; (3) Ms. Lard called 911 directly after
the incident, and officers described her affect as very distraught; (4) photographs of the
MEMORANDUM DECISION AND ORDER - 11
scene showed the packed-up belongings of Petitioner, a tipped over table, and a couch
that had been pushed back; (4) Ms. Lard said Petitioner took her phone, and Petitioner
was found with two phones, one of which was Ms. Lard’s, when he was arrested; (5)
after the incident, Petitioner told officers that his name was not Miguel, but officers
demanded to see his identification, which showed that his middle name was Miguel. To
counter these facts, Petitioner has not provided any corroborating evidence to support his
side of the story.
The jury heard that Ms. Lard had tampered with the crime scene by moving the
urn, a large candle Petitioner allegedly had thrown at her, and a computer that had fallen
off the table; her excuse was that she was trying to clean up for her mother’s arrival and
did not know she shouldn’t have altered a crime scene. The jury also heard that Ms. Lard
and Petitioner had floated the Boise River before the incident, an activity that could have
caused her bruising. Petitioner’s counsel also cross-examined the officer on the fact that
Ms. Lard had only a few red marks low on her neck and no other signs of strangulation,
such as blue lips or bloodshot eyes. Counsel also highlighted inconsistencies in Ms.
Lard’s reports of the incident to different officers.
Based on the Court’s review of the entire court record, including the trial
transcript, and Petitioner’s new allegations of actual innocence made in his filings in this
action, the Court concludes that he has not made a persuasive argument of factual
MEMORANDUM DECISION AND ORDER - 12
innocence sufficient to meet the Schlup v. Delo standard. Therefore, his late filing is
The Petition for Writ of Habeas Corpus in this action was filed beyond the federal
statute of limitations period. He asks, “Does anybody care about the [alleged Sixth
Amendment] violation other than myself?” (Dkt. 18, p. 4.) Here, the issue is not whether
anyone cares about constitutional violations, because most certainly the federal courts do,
but rather the threshold procedural issue is whether Petitioner filed his Petition on time,
because the Court is required to follow the procedural rules that govern habeas corpus
Petitioner has not made an equitable tolling argument, and none is apparent from a
review of the record. Petitioner has made an actual innocence argument, but it does not
meet the Schlup v. Delo standard. Accordingly, the Court will dismiss the Petition with
prejudice. The Court does not reach the procedural default issue.
IT IS ORDERED:
1. Respondent’s Motion for Extension of Time to File Answer or Pre-Answer
Motion (Dkt. 13) is GRANTED.
MEMORANDUM DECISION AND ORDER - 13
2. Respondent’s Motion for Summary Dismissal (Dkt. 15) is GRANTED. The
Petition (Dkt. 3) is DISMISSED with prejudice.
3. Petitioner’s Motion for Appointment of Counsel (Dkt. 17) is DENIED.
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); 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.
DATED: March 21, 2017
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
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