Foss v. Yordy
MEMORANDUM DECISION AND ORDER granting 16 Respondent's Motion for Extension of Time; granting 13 Respondent's Motion to Dismiss. 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 (cjs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CHRISTOPHER THOMAS FOSS,
Case No. 1:16-cv-00279-CWD
MEMORANDUM DECISION AND
KEITH HOWARD YORDY,
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Christopher Thomas Foss (“Petitioner” or “Foss”), challenging Petitioner’s
state court convictions. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal,
arguing that the Petition is barred by the one-year statute of limitations and that the
claims in the Petition are procedurally defaulted. (Dkt. 15.) The Motion is now ripe for
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 12.) See Fed. R. Evid.
201(b); Dawson v Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006).
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. 10.)
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Having carefully reviewed the record, including the state court record, the Court finds
that the parties have adequately presented the facts and legal arguments in the briefs and
record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).
Accordingly, the Court enters the following Order granting the Motion for
Summary Dismissal and dismissing this case with prejudice as untimely.
In the Fifth Judicial District Court in Cassia County, Idaho, Petitioner pleaded
guilty to voluntary manslaughter, as well as to a sentencing enhancement for use of a
weapon during the commission of a felony. (State’s Lodging A-1; A-2.) Petitioner was
sentenced to a unified term of thirty years in prison with fifteen years fixed. (State’s
Lodging A-1 at 2; A-3 at 24.) The judgment of conviction was entered on April 21, 2009.
(State’s Lodging A-1 at 3.) On May 20, 2009, Petitioner filed a motion for reduction of
sentence under Idaho Criminal Rule 35. (Id.) The trial court denied the motion on June
11, 2009. (Id.) Petitioner did not file a direct appeal. (State’s Lodging A-1; Dkt. 1 at 2.)
Petitioner returned to the Idaho district court. On March 31, 2010 (at the earliest),
Petitioner filed a petition for post-conviction relief. (State’s Lodging B-2 at 4.) See
Munson v. State, 917 P.2d 796, 800 (Idaho 1996) (holding that a pro se inmate’s
postconviction petition is deemed filed on the date the petition is delivered to prison
authorities for placement in the mail). The trial court dismissed the petition on July 26,
2011. (State’s Lodging B-12.) Petitioner did not file an appeal. (State’s Lodging B-1;
Dkt. 1 at 3.)
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Petitioner filed his Petition in this Court, at the earliest, on June 21, 2016. See Rule
3(d) of the Rules Governing Section 2254 Cases (“Habeas Rules”); Houston v. Lack, 487
U.S. 266, 270 (1988) (holding that a legal document is deemed filed on the date a
prisoner delivers it to the prison authorities for filing by mail, rather than the date it is
received by the clerk of court). The Petition asserts the following claims:
Ineffective assistance of trial counsel
based on counsel’s failure to present a
claim of self-defense during the
preliminary hearing or at sentencing.
Ineffective assistance of counsel based
on (a) trial counsel’s failure to appeal
Petitioner’s sentence; and (b) postconviction counsel’s failure to file an
appeal from the trial court’s dismissal of
Petitioner’s post-conviction petition.1
Denial of due process based on the trial
court’s refusal, during Petitioner’s Rule
35 proceedings, to consider Petitioner’s
claim of self-defense.
Ineffective assistance of trial counsel
during the pre-plea stage, based on
counsel’s advice to Petitioner regarding
the guilty plea.
(Dkt. 1 at 5-8; Initial Review Order.)
The Court previously reviewed the Petition and allowed Petitioner to proceed on
his claims to the extent those claims “(1) are cognizable in a federal habeas corpus action,
As noted in the Initial Review Order, Claim 2(b) is not cognizable because there is no
freestanding constitutional right to counsel during state post-conviction proceedings. (Dkt. 7 at 2 n.1.)
MEMORANDUM DECISION AND ORDER - 3
(2) were timely filed in this Court, and (3) were either properly exhausted in state court or
subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 3.)
The Habeas Rules authorize 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,” as well as those records subject to judicial notice, “that the petitioner is not
entitled to relief in the district court.” Habeas Rule 4; see Fed. R. Evid. 201(b); Dawson,
451 F.3d at 551 n.1. 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).
Respondent argues that Petitioner’s claims are barred by the one-year statute of
limitations and that his claims are procedurally defaulted. Because Petitioner (1) is
entitled to statutory tolling of only part of the statute of 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. Therefore, the
Court need not address Respondent’s procedural default argument.
Standards of Law
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 in this context actually
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):
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means 366 days, for example, from January 1, 2001, to January 1, 2002. See Patterson v.
Stewart, 251 F.3d 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).
Thus, the first step in a statute of limitations analysis is determining the date on which the
petitioner’s 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 case:
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
(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 - 5
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
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
The one-year statute of limitations can be tolled (or suspended) under certain
circumstances. AEDPA provides for tolling for all of “[t]he time during which a properly
filed application for State post-conviction or other collateral review . . . 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 re-examination of the sentence qualifies as a collateral review
application that tolls the one-year statute of limitations. Wall v. Kholi, 562 U.S. 545, 55556 (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. To warrant tolling, the collateral relief application must be
“properly filed,” meaning that it conforms to state rules governing conditions to filing,
including filing deadlines. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
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
MEMORANDUM DECISION AND ORDER - 6
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). Finally, a petitioner is not entitled to tolling of the 90-day certiorari period
following the last state court decision in his post-conviction proceedings. Lawrence v.
Florida, 549 U.S. 327, 331 (2007) (“[An] application for state postconviction review is
. . . not ‘pending’ after the state court’s postconviction review is complete, and
§ 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition
If, after applying statutory tolling, a habeas petition is deemed untimely, a federal
court can still hear the merits of 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). A petitioner requesting equitable tolling must
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show “reasonable diligence, not “maximum feasible diligence,” id. at 653, and “whether
a petitioner acted with reasonable diligence is a fact-specific inquiry,” Fue v. Biter, 842
F.3d 650, 654 (9th Cir. 2016).
In addition, the statute of limitations is subject to an actual innocence exception. A
petitioner who satisfies the actual innocence gateway standard may have his otherwise
time-barred claims heard on the merits. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32
(2013); Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc). Actual innocence in
this context means “factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 624 (1998). Although “habeas petitioners who assert convincing
actual-innocence claims [need not] prove diligence to cross a federal court’s threshold,” 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.’”
McQuiggin, 133 S. Ct. at 1935 (quoting Schlup, 513 U.S. at 332) (alterations omitted).
The Petition Is Barred by the Statute of Limitations
Date of Finality and Statutory Tolling
Because Petitioner did not file a direct appeal, his convictions became final on
June 2, 2009, when Idaho’s 42-day period for filing an appeal from the April 21, 2009
judgment expired. See Idaho Appellate Rule 14(a). Because Petitioner’s Rule 35 motion
was already pending when his conviction became final, Petitioner is entitled to statutory
tolling until the denial of his Rule 35 motion became final. Petitioner did not appeal the
denial of his Rule 35 motion. Therefore, his Rule 35 proceedings concluded, at the latest,
MEMORANDUM DECISION AND ORDER - 8
on July 23, 2009—42 days after the trial court denied the motion on June 11, 2009. Id.
The one-year statute of limitation then began to run.
The statute then ran, untolled, for 251 days before Petitioner filed his postconviction petition on March 31, 2010. The trial court dismissed the petition on July 26,
2011. Because Petitioner did not appeal, the statute began running again on September 6,
2011—42 days after the trial court’s dismissal the petition. Id. At that point, Petitioner
had 115 days remaining in the statute of limitations period (366 days minus 251 days).
Therefore, Petitioner’s federal Petition was due in this Court on or before
December 30, 2011—115 days after the conclusion of Petitioner’s state post-conviction
proceedings.3 Even with statutory tolling, Petitioner’s June 21, 2016 Petition was filed
nearly four-and-a-half years too late. Therefore, Petitioner’s claims can be deemed timely
only if he is also entitled to equitable tolling for the remaining time period.
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
Respondent miscalculates the statute of limitations period because he relies on the date
Petitioner’s post-conviction petition was received by the county clerk of court and the date the Clerk of
Court received his federal Petition. (Dkt. 13-1 at 6.) However, as noted above, the mailbox rule applies
both in federal court and in Idaho state court. Habeas Rule 3(d); Houston, 487 U.S. at 270; Munson, 917
P.2d at 800.
MEMORANDUM DECISION AND ORDER - 9
omitted). As to the diligence issue, the Supreme Court has held that a petitioner who
“waited years, without any valid justification” to bring his post-conviction claims in state
court, and then waited “five more months after his [post-conviction] 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 has not established extraordinary circumstances that would justify the
application of equitable tolling in this case. Petitioner asserts that the Supreme Court’s
decision in Martinez v. Ryan, 566 U.S. 1 (2012), excuses the untimely filing of his
Petition. But Martinez—which established an equitable exception to the general rule that
errors of post-conviction counsel cannot serve as cause to excuse the procedural default
of a constitutional claim—applies only in the context of procedural default. It has no
application to the statute of limitation. Lambrix v. Sec. of Fla. Dep’t of Corrs., 756 F.3d
1246, 1249 (11th Cir. 2014) (“[T]he equitable rule in Martinez . . . has no application to
the operation or tolling of the § 2244(d) statute of limitations for filing a § 2254
petition.”) (internal quotation marks omitted); Avila v. Reinke, Case No. 1:11-cv-00474EJL, 2014 WL 4162385, at *8 (D. Idaho Aug. 20, 2014) (unpublished) (stating that
Martinez v. Ryan “applies only to a procedural default defense, not to a statute of
Petitioner argues, however, that because the prison has never had a copy of the
Martinez decision available for the inmates, the statute of limitations either (1) was
equitably tolled from the date of the Martinez decision to the date he filed the instant
MEMORANDUM DECISION AND ORDER - 10
Petition or (2) did not begin to run at all because the failure to notify inmates of Martinez
constituted a state-created impediment to filing a petition under § 2244(d)(1)(B). (Dkt. 15
at 13-15.) Petitioner asserts he did not file a timely petition because he believed that,
because his claims were procedurally defaulted, he could not file a federal petition; this
belief was based on the prison paralegal’s advice that if “he had not appealed to the
State’s highest Court, then he could not file in the Federal Court.” (Id. at 16.) Thus,
contends Petitioner, had he known earlier that Martinez changed the law regarding postconviction counsel’s ineffectiveness as cause to excuse procedural default, he would have
filed a timely federal petition. (Id.)
But prisons are not required to keep copies of specific court decisions or to
otherwise maintain a comprehensive law library. Lewis v. Casey, 518 U.S. 343, 351
(1996) (stating that a prisoner’s right of access to the courts is not an “abstract,
freestanding right to a law library or legal assistance”). The Constitution does not require
that inmates “be able to conduct generalized research, but only that they be able to
present their grievances to the courts—a more limited capability that can be produced by
a much more limited degree of legal assistance.” Id. at 360. That the prison did not have a
copy of Martinez available to inmates does not constitute an extraordinary circumstance
justifying equitable tolling. Moreover, the statute of limitations expired on December 30,
2011—months before Martinez was decided on March 20, 2012. Therefore, the prison’s
failure to keep a copy of that decision could not possibly have prevented Petitioner from
filing a timely petition. See Holland, 560 U.S. at 649.
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Petitioner also claims that he was prohibited from filing a pro se notice of appeal
from his convictions because he was represented by counsel, and Idaho appellate courts
do not accept inmate filings if the inmate is represented by counsel. However, Petitioner
does not explain how the failure to file a notice of appeal in state court entitles him to
equitable tolling of the federal statute of limitation. Petitioner himself—not trial or postconviction counsel—was responsible for filing a timely federal petition.
Finally, even assuming Petitioner’s allegations constituted extraordinary
circumstances beyond his control, he has not demonstrated that he exercised reasonable
diligence in pursuing his rights. See id. at 653. Therefore, Petitioner is not entitled to
Petitioner Has Not Established Actual Innocence to Excuse the Untimely
To take advantage of the miscarriage-of-justice exception to the statute of
limitations, a petitioner must demonstrate “that it is more likely than not that no
reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.”
Schlup, 513 U.S. at 327. Stated another way, a petitioner must show that every reasonable
juror would vote to acquit.
This is an extremely stringent standard that “permits review only in the
‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). A court considering
whether a petitioner has established actual innocence must consider “all the evidence, old
and new, incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation marks omitted). The actual
MEMORANDUM DECISION AND ORDER - 12
innocence analysis “does not turn on discrete findings regarding disputed points of fact,
and ‘[i]t is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses.’” House v. Bell, 547 U.S. 518, 539-40 (2006) (quoting
Schlup, 513 U.S. at 329 (alteration in original)). Rather, the court must “make a
probabilistic determination about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329.
Petitioner has presented no new, reliable evidence that a miscarriage of justice
would result if his claims are not heard on the merits. His conclusory and self-serving
protestations of innocence are insufficient to invoke the actual innocence exception to
AEDPA’s statute of limitations.
The claims in the Petition are barred by AEDPA’s one-year statute of limitations.
Therefore, this case must be dismissed.
IT IS ORDERED:
Respondent’s Motion for Extension of Time (Dkt. 16) is GRANTED.
Respondent’s Motion for Summary Dismissal (Dkt. 13) is GRANTED, and
the Petition 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. See 28 U.S.C.
MEMORANDUM DECISION AND ORDER - 13
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. 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: May 26, 2017
Honorable Candy W. Dale
United States Magistrate Judge
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