Mitchell v. State of Idaho
MEMORANDUM DECISION 7 ORDER Respondent's Motion for Summary Dismissal (Dkt. 12 ) is GRANTED, and the Petition is DISMISSED with prejudice. 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
ROB L. MITCHELL,
Case No. 1:17-cv-00045-CWD
MEMORANDUM DECISION AND
STATE OF IDAHO, WARDEN
KEVEN YORDY, and ALL
SUCCESSORS IN OFFICE,
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Idaho
state prisoner Rob L. Mitchell (“Petitioner”), challenging Petitioner’s Nez Perce County
convictions for attempted murder and robbery. (Dkt. 2.) Respondent has filed a Motion
for Summary Dismissal, arguing that Petitioner’s claim is barred by the one-year statute
of limitations and is noncognizable. (Dkt. 12.) The Motion is now ripe for adjudication.
The Court takes judicial notice of the records from Petitioner’s state court
proceedings, which have been lodged by Respondent. (Dkt. 11.) See Fed. R. Evid. 201;
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. 13.)
MEMORANDUM DECISION AND ORDER - 1
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 and dismissing
the Petition with prejudice as untimely.
In 1992, following a jury trial in the Second Judicial District in Nez Perce County,
Idaho, Petitioner was convicted of robbery and attempted murder in the first degree. He
was sentenced to consecutive prison terms of thirty-five years with fifteen years fixed on
the robbery count, and fifteen years on the attempted murder count. (State’s Lodging A-1
at 104-06.) Petitioner filed a direct appeal, and the Idaho Court of Appeals affirmed.
(State’s Lodging B-4.) Petitioner did not file a petition for review with the Idaho
Supreme Court, and the court of appeals issued the remittitur on October 12, 1993.
(State’s Lodging B-5.)
Petitioner filed a state post-conviction petition in 1994. (State’s Lodging C-1 at 114. The state district court granted relief on Petitioner’s claim of ineffective assistance of
appellate counsel and denied relief on Petitioner’s remaining claims. (Id. at 107-28.) The
court reinstated the original appeal period, allowing Petitioner “to file a new appeal with
present counsel.” (Id. at 127.)
The state appealed the Idaho district court’s grant of post-conviction relief on the
basis of ineffective assistance of appellate counsel, and Petitioner cross-appealed the
MEMORANDUM DECISION AND ORDER - 2
denial of his other claims. Petitioner also filed a new direct appeal from his convictions
pursuant to the grant of post-conviction relief. The two appeals were consolidated.
(State’s Lodging D-3.) The Idaho Supreme Court reversed the grant of post-conviction
relief as to Petitioner’s appellate ineffectiveness claim, affirmed the denial of postconviction relief as to Petitioner’s other claims, and dismissed the new direct appeal.
(State’s Lodging D-8.) The remittitur was issued on December 17, 1998. (State’s
On September 21, 2001, at the earliest,1 Petitioner filed his first motion for
correction of sentence under Idaho Criminal Rule 35. (State’s Lodging E-1 at 8-9.) The
trial court denied the motion on October 23, 2001,2 and Petitioner appealed. (Id. at 2128.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review.
(State’s Lodging F-3, F-6.) The remittitur was issued on January 17, 2003. (State’s
Idaho courts follow the prison mailbox rule and generally deem a pro se inmate’s post-conviction
petition filed on the date the petition is delivered to prison authorities for placement in the mail. Munson
v. State, 917 P.2d 796, 800 (Idaho 1996). This rule also likely applies to motions brought pursuant to
Idaho Criminal Rule 35.
There is some evidence that Petitioner filed another Rule 35 motion on October 23, 2001 and that
the motion was denied the same day—the state court’s Register of Actions (“ROA”) can be read to
indicate this, and the state district court later concluded that such a motion had been filed that day, likely
by reviewing only the ROA. (See State’s Lodging A-4; G-1 at 18.) However, the record is not clear on
this issue; there is no copy of any such motion in the state court record, Petitioner himself does not
indicate in his Petition the existence of such a motion, and there is no mention of this supposed October
23 motion in Petitioner’s appeal from the denial of the September 21 motion. It is more likely that the
ROA simply contains a duplicate entry of the denial of the September 21 Rule 35 motion, which occurred
on October 23, 2001. Regardless, this lack of clarity in the record does not affect the Court’s analysis in
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Petitioner contends that he filed another Rule 35 motion in approximately May of
2009, although the state court’s Register of Actions for Petitioner’s case does not show
this filing. (Dkt. 2 at 4; State’s Lodging A-4.) According to Petitioner, the trial court
denied the motion, the court of appeals affirmed, and the state supreme court denied
review. (Dkt. 2 at 4.) Petitioner does not provide dates for these decisions. The Court will
assume, for purposes of this decision only, that Petitioner’s description of these
proceedings is accurate. As explained below, the lack of dates for these decisions does
not affect the Court’s analysis.
On March 3, 2016, at the earliest, Petitioner filed another Rule 35 motion, which
the trial court denied. (State’s Lodging G-1 at 8-10, 17-18.) The Idaho Court of Appeals
affirmed, holding that the motion was untimely and the trial court thus lacked jurisdiction
to hear it. (State’s Lodging H-4.) The Idaho Supreme Court denied review and issued the
remittitur on January 9, 2017. (State’s Lodging H-6, H-7.)
Petitioner filed his Petition in this Court, at the earliest, on January 26, 2017.3
Petitioner asserts a single claim: that his sentences should run concurrently, not
consecutively. (Dkt. 2 at 6.)
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,
(2) were timely filed in this Court, and (3) were either properly exhausted in state court or
The federal courts also follow the prison mailbox rule. See Houston v. Lack, 487 U.S. 266, 27072 (1988); Rule 3(d) of the Rules Governing Section 2243 Cases.
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subject to a legal excuse for any failure to exhaust in a proper manner.” (Dkt. 7 at 3
The Rules Governing Section 2254 Cases (“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; 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. For the reasons that follow, the Court agrees.4
Standards of Law
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) instituted
a one-year statute of limitations for habeas corpus petitions. See 28 U.S.C. § 2244(d). The
limitations period generally begins to run on the date the petitioner’s conviction became
final. However, because Petitioner’s conviction became final before AEDPA’s
enactment, Petitioner “had a one-year grace period” from the date of enactment within
which to file his petition. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). That
The Court need not address Respondent’s cognizability argument.
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is, the statute of limitations began running on April 24, 1996, and any petition
challenging Petitioner’s convictions should have been filed on or before April 24, 1997.
Id. at 1246.
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.
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
MEMORANDUM DECISION AND ORDER - 6
before the state petition was filed.” Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir.
To determine the date when a petitioner’s state court post-conviction action
concluded, the Court looks to state law. Allen v. Lewis, 295 F.3d 1046, 1046 (9th Cir.
2002) (en banc) (reaffirming Bunney v. Mitchell, 262 F.3d 973 (9th Cir. 2001) (per
curiam), superseded on other grounds by Cal. Rule of Court 8.532(b)(2)(C)) as stated in
Korolev v. Horel, 386 F. App’x 594 (9th Cir. July 2, 2010) (unpublished)). Under Idaho
law, an appellate case remains pending until a remittitur is issued, see Jakoski v. State, 32
P.3d 672, 679 (Idaho Ct. App. 2001), and so, for federal statute of limitations purposes, a
collateral relief application in Idaho is deemed “pending” through the date of the
remittitur. See Jefferson v. Budge, 419 F.3d 1013, 1015 n.2 (9th Cir. 2005).
“Pending,” as set forth in § 2244(d)(2), does not include the time period for filing
a petition for writ of certiorari before the United States Supreme Court to challenge
denial of a collateral review petition. Lawrence v. Florida, 549 U.S. 327, 337 (2007).
Further, 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. Finally, to qualify for statutory tolling, the collateral relief application must be
However, the United States Supreme Court has established an exception for cases in which the
state court grants the petitioner the right to file an out-of-time direct appeal; in that case, the federal
habeas statute of limitations begins to run again from the new date of finality. Jimenez v. Quarterman,
555 U.S. 113, 121 (2009) (“[W]here a state court grants a criminal defendant the right to file an out-oftime direct appeal during state collateral review, but before the defendant has first sought federal habeas
relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).”).
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“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).
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).
In addition, the statute of limitations is subject to an actual innocence exception. A
petitioner who satisfies the actual innocence gateway standard may have otherwise timebarred 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). If a petitioner can establish actual innocence, a federal
court may consider the petitioner’s time-barred claims on the merits.
The Petition Is Barred by the Statute of Limitations
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In this case, the statute of limitations ordinarily would have begun to run on April
24, 1996, the date of AEDPA’s enactment. However, because Petitioner’s state postconviction relief was still pending on that date, the statute was tolled immediately
pursuant to 28 U.S.C. § 2244(d)(2). The statute remained tolled, and the limitations
period did not begin to run, until Petitioner’s post-conviction proceedings were
completed. Those proceedings concluded on December 17, 1998, when the state supreme
court issued the remittitur in the consolidated new direct appeal/post-conviction appeal.
(State’s Lodging D-9.)
Therefore, Petitioner’s statute of limitations began to run on December 17, 1998,
making the Petition due in this Court no later than December 17, 1999. Petitioner’s
January 26, 2017 Petition was filed over seventeen years too late. Because the limitations
period expired before Petitioner filed any of his Rule 35 motions, none of those state
court proceedings can toll the limitations period under § 2244(d)(2). See Ferguson, 321
F.3d at 822.
In his response to the Motion for Summary Dismissal, Petitioner argues the merits
of his claim and complains of prison conditions, but he does not contend that he is
entitled to equitable tolling of the statute of limitations or that he is actually innocent.
Therefore, the Court must dismiss the Petition as untimely.
IT IS ORDERED:
MEMORANDUM DECISION AND ORDER - 9
Respondent’s Motion for Summary Dismissal (Dkt. 12) 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.
§ 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
DATED: December 29, 2017
Honorable Candy W. Dale
United States Magistrate Judge
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